Whether or not someone with a mental impairment is protected by the Disability Discrimination Act 1995 (DDA) depends on whether the illness has a substantial, adverse and long-term effect on the individual’s ability to carry out normal day-to-day activities and on whether or not the condition is likely to recur.
According to a survey carried out by the organisers of Time to Change, a campaign to end discrimination faced by people experiencing mental health problems, 92 per cent of Britons feel that it would harm their job prospects were they to disclose a mental health condition to their employer or prospective employer. This often makes it difficult for sufferers to avail themselves of the protection afforded to them by the DDA.
A recent case has clarified the approach to be taken in determining whether a mental condition is a disability under the DDA (J v DLA Piper UK LLP).
A lawyer, referred to as ‘J’, claimed that in 2008 DLA Piper withdrew its offer of a job after she disclosed to its Human Resources Department that she had a history of depression. DLA Piper claimed that the job offer was withdrawn because of a freeze on recruitment.
On a preliminary issue, the Employment Tribunal (ET) was not convinced that J had suffered from clinical depression in the past and found that she did not have a disability for the purposes of the DDA at the time in question. On appeal, however, the Employment Appeal Tribunal (EAT) ruled that the ET was wrong in failing to take into account the evidence of J’s GP regarding her mental condition and its decision that her past depression did not amount to an impairment was perverse. This was material because it affected any decision as to whether she had a disability that was likely to recur without the necessary treatment.
In the EAT’s view, in cases where there is a dispute about the existence of an impairment, there are two questions for the ET to answer:
1. Does the claimant have a mental or physical impairment? and
2. Does this have an adverse effect on that person’s ability to carry out normal day-to-day activities?
Whilst it is good practice in every case for the ET to state separately its conclusions regarding each – and, in the case of adverse effect, the questions of substantiality and long-term effect arising under it – in reaching its conclusions, the ET should not proceed by ‘rigid consecutive stages’. It makes sense to start by making findings about whether the claimant’s ability to carry out normal day-to-day activities is adversely affected (on a long-term basis), and to consider the question of impairment in the light of those findings.
The case was therefore remitted to be heard by a fresh ET.