J v DLA Piper UK LLP – Employment Appeal Tribunal ("EAT")
The Case
J was offered a job by the respondent firm of solicitors (D) in June 2008, subject to completion of a medical questionnaire. In the questionnaire, she disclosed a history of depression dating back to 2005 and the offer was withdrawn. The reason given was that the economic situation required a recruitment freeze. J believed that the real reason for withdrawal of the offer was her medical history. She brought proceedings under the Disability Discrimination Act 1995 (DDA).
A person has a disability under s.1 of the DDA if he has "a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities". The Tribunal had first to determine whether J was disabled under the DDA at the time the alleged discrimination had occurred. The DDA had previously provided that for a mental illness to be a disability it had to be clinically well recognised. However, this requirement was abolished in 2005.
Conflicting medical reports were put forward in evidence. J's GP considered that in June 2008, J was suffering from a depression which had a substantial adverse effect on her ability to carry out normal day-to-day activities. However, J's psychiatrist stated that the strength of the medical evidence adduced in relation to that adverse effect was weak.
The Decision
The Tribunal held that J had not provided conclusive evidence to establish that she had a sufficiently well-defined impairment. The EAT held, however, that in cases where there is a dispute regarding whether an individual is impaired, the Tribunal's first step should be to examine the effect of the condition on the employee. The Tribunal should then not be required to resolve evidential medical issues surrounding the definition of 'mental impairment'.
What Does it Mean for You?
Tribunals should from now on focus on the employee's day to day activities and the effect of the impairment on them, when deciding whether an individual is disabled within the meaning of the DDA. This will help avoid difficult questions where the medical evidence is conflicting or imprecise. The decision provides useful guidance to employers who may be grappling with the same issue in the workplace. We recommend that a prudent approach is taken and this could be of value, particularly where employers are in a position to take preventative steps to deal with any dispute prior to a claim arising.
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