Employment Flash - 18th June 2010

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Disability guidance and whether perception of disability by an employer is enough...

J v DLA Piper UK LLP [2010] UKEAT 0263 09 RN

J was interviewed by DLA for a job. She was offered the job subject to completing a medical questionnaire. When speaking to DLA's HR dept. J revealed she had a history of depression. HR's response was to inform her that the role she had applied for was a high pressure one and that she ought to reconsider whether it was suitable for her; if appointed she would not be able to work from home. A few days later J was informed there was a recruitment freeze and the job offer was withdrawn. J believed the real reason was her medical history and in September 2008 commenced proceedings for DDA discrimination.

Before the ET the issue was whether J was disabled at the date of discrimination within the meaning of the DDA. J took issue on appeal (but not in her ET1 or before the ET) as to whether she was discriminated against even if she was not disabled within the DDA because DLA believed her to be disabled - discrimination on the grounds of perceived disability.

The approach the EAT favoured in relation to the original issue:

(1) it remains good practice for ET's to state conclusions separately on the issues of impairment and of adverse effect (and questions of substantiality and long-term effect in relation to adverse effect); (2) the ET should not proceed in rigid consecutive stages in dealing with those issues. In cases where there may be a dispute about the existence of an impairment they should 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 consider the question of impairment in the light of those findings (it can be appropriate in cases where the nature of the impairment involves difficult medical questions for the ET to park that question and determine adverse effect first: if adverse effect exists, then there may be a common-sense inference to be drawn that the claimant has an impairment - an approach consistent with College of Ripon and York v Hobbs [2002] IRLR 185 and McNichol v Balfour Beatty Rail Maintenance Ltd [2002] ICR 1498); (3) Ripon College and McNichol remain authoritative save and in so far as they refer to repealed provisions of the DDA particularly para. 1 Schedule 1 ("Mental impairment"); Morgan v Staffordshire University [2002] ICR 475 cannot now be relied on as a guide to the law as it now stands.

The EAT accepted that there is a distinction to be made in relation to symptoms of low mood and anxiety between a state of affairs that constitutes clinical depression and a state of affairs that is a result of adverse circumstances. It is a distinction regularly made by clinicians and should in principle be recognised for the purposes of the DDA. In principle there may be difficulties in distinguishing the two, in practice because of the need to show a long-term effect, where that effect is shown then an ET would be likely to conclude that a claimant was suffering from clinical depression rather than a reaction to adverse circumstances; it is a common sense observation that such reactions are not normally long lived.

The EAT in passing suggested that in relation to "likely to recur" as it appears in para 2(2) of Schedule 1, the construction of the word "likely" in relation to para 6(1) of Schedule 1 in Boyle v SCA Packaging Ltd [2009] ICR 1056 (see Employment Flash 3.7.09) would apply to 2(2) as well: it refers to the kind of risk that could well happen and against which sensible precautions should be taken.

The EAT declined to adjudicate the perceived disability point but did recognise there was some analogy to be drawn with associative discrimination (EBR Attridge LLP v Coleman [2010] ICR 242).

The claim has been remitted to a different ET.

For a review of recent discrimination cases see Ceri Widdett's Discrimination Law Review.