Adverse effects

J v DLA Piper UK LLP

To come under the provisions of the 1995 Disability Discrimination Act (DDA), claimants have to show that they have an impairment that has a substantial adverse effect on their normal day-to-day activities. The Employment Appeal Tribunal (EAT) said in J v DLA Piper UK LLP that, when deciding whether an employee has an impairment, tribunals do not have to be rigid in their approach and can first consider whether their ability to carry out normal day-to-day activities has been adversely affected.

Basic facts

The claimant, known only as J, began suffering with depression in 2005 and was off sick as a result for four months between 2005 and 2008. She received medication but suffered a partial relapse in 2007. In mid-2008, she applied for a job with DLA Piper as a professional support lawyer which she was offered, subject to completing a medical questionnaire.

Before completing the medical questionnaire, she told a manager in Human Resources that she had a history of depression. The manager said the role was a high pressure one and that she should consider whether it was really suitable for her.

A few days later, DLA contacted her saying that they had withdrawn the offer because of a decision to impose a recruitment freeze as a result of the credit crunch. J lodged a claim for disability discrimination.

Tribunal decision

The tribunal decided that at the time she alleged she had been discriminated against (May/June 2008) she was not “disabled” as defined under the DDA and it struck out her claim. In particular, it discounted her GP’s evidence of a “deduced effect” (an impairment which but for medical treatment, or other aids, could amount to a disability).

J appealed, arguing that the tribunal had applied the wrong legal test in relation to her impairment and, even if she was not disabled at the time, the company withdrew its offer because it believed she was disabled. As perceived disability is contrary to EU law (particularly in light of the decision in Coleman v Attridge Law), J said the tribunal was wrong in law to have dismissed her claim.

EAT decision

And the EAT agreed with the first point, but not the second. It said that as J had suffered from depression in 2005 and 2006, the tribunal did not take into account all relevant factors and should have asked itself whether her clinical depression was likely to recur at the material time when she made her complaint in June 2008. If it was, then her condition was a disability for the purposes of the DDA at the material time.

Instead, the tribunal had focused on J’s reaction to a negative assessment at work just before she applied to DLA, saying it was not clinical depression but a negative response to a life event. The EAT found the tribunal’s decision on the facts to be perverse for not accepting the GP’s evidence that J was suffering from clinical depression in June 2008, preferring the inconclusive advice of a specialist which did not address the point.

In terms of guidance, the EAT said it was good practice in every case for tribunals to look at the issue of whether someone has an impairment separately from the question of whether it has an adverse effect on their ability to carry out normal day-to-day conditions.

However, that did not mean that tribunals had to adhere rigidly to that approach and, if it made sense, they could “park” the issue of the impairment (particularly if it involved resolving difficult medical questions) and “ask first whether the claimant’s ability to carry out normal day-to-day activities has been adversely affected”. If the answer was yes, then in most cases the tribunal could infer “that the claimant is suffering from a condition which has produced that adverse effect - in other words, an “impairment”.

It accepted that when considering the question of impairment in cases of depression, it was useful for tribunals to distinguish between clinical depression and anxiety. It said the first was a mental illness which was “unquestionably an impairment within the meaning of the DDA. The second is not characterised as a mental condition at all but simply as a reaction to adverse circumstances (such as problems at work) ...”