Kapadia v London Borough of Lambeth [2000] IRLR 699 CA
Davis v Coutts & Co (EAT 306/99 unreported 9.10.00)
Farnsworth v London Borough of Hammersmith & Fulham [2000] IRLR 691EAT
Quinn v Schwarzkopf Ltd (EAT.409.00 unreported 10.10.2000)
Recent Disability Discrimination Act decisions focus on the fundamental question of who is and who is not disabled, and also the extent to which an employer has to have knowledge of an employee's disability to be liable under the Act.
In Kapadia v London Borough of Lambeth, the Court of Appeal address the issue of whether the Employment Tribunal were entitled to reject the unchallenged evidence of the medical experts regarding the Applicant's disability and substitute their own opinion.
The medical experts took the view that Mr Kapadia's symptoms of extreme depression and anxiety were such as to have a significant effect on his day to day activities. The Tribunal rejected this evidence on the basis of their observation of Mr Kapadia before the Tribunal to hold that he was not disabled. The Tribunal's decision was rejected by both the Employment Appeal Tribunal and also the Court of Appeal. The Court of Appeal held that the Tribunal were not entitled to ignore such persuasive and unchallenged expert evidence on matters relating to an individual's medical condition.
The difficulty of showing that mental illness amounts to a disability is again illustrated in the EAT decision of Davis v Coutts & Co. Mrs Davis, like Mr Kapadia, suffered from depression. Her symptoms included extreme anxiety, sickness, sleeplessness, introversion, and loss of interest in her usual hobbies. But to prove that she was disabled she had to show that her normal day to day activities were affected in at least one of a fixed category of capacities (Schedule 1, para 4, DDA). In her case the relevant set of capacities was "memory or ability to concentrate learn or understand".
The evidence did not suggest that these particular capacities were affected. Her employers therefore argued that she could not be regarded as disabled. Both the Tribunal and the EAT agreed. In reaching this conclusion, the EAT stated their concern about this state of affairs. "We cannot leave the subject of disability without expressing some concern that one can have a person put at huge disadvantages such as, for example, being unable to sleep or being in frequent pain who yet, for want of being within one of the boxes of para 4(1)(a) to (h), must be taken not to be disabled..."
In the EAT decision of Farnsworth v London Borough of Hammersmith & Fulham, Ms Farnsworth claimed that she had been discriminated against when she was rejected for the post of residential social worker by reason of her past medical history. She had in the past suffered from depressive illness, but the condition was controlled and she had glowing references from previous employers with whom her attendance record had been good. The London Borough of Hammersmith and Fulham had offered her the job of social worker subject to medical assessment. The Occupational Health Physician had then prepared a report based on a medical examination and consideration of her medical records, and concluded that "I am concerned that she may be liable to further recurrences [of ill health] in the future." Effectively therefore, the Occupational Physician had simply made an assumption about her likely future attendance, despite the reality of her actual past performance. Relying on the medical report, the Council withdrew the job offer.
The EAT upheld the decision of the Tribunal which concluded that the Council had discriminated against Ms Farnsworth. A case could not be made out directly against the Occupational Health Physician, since she was only an agent of the Council and not employed by them, and so was not in any sense Ms Farnsworth's employer, or future employer. As agent of the Council however she was part of the "decision making team" who took the decision not to employ. No valid distinction could therefore be made between her acts and those of employees of the Council. To the extent that her judgement that Ms Farnsworth's attendance was likely to be poor was based on discriminatory assumptions, so the Council were liable for her conduct.
The EAT also addressed the vexed question of whether an employer has to have knowledge of a disability before they can be liable under section 5 (1) (a) of the Act in treating an employee less favourably for a reason relating to their disability. Relying on the Court of Appeal decision of Clark v TDG Ltd t/a Novacold ([1999] IRLR 318, LELR 34), the EAT conclude that knowledge is not necessary. Instead the test is one of causation. In other words, is the objective reason for the less favourable treatment due to the disability, regardless of knowledge. The EAT give as an example a visually impaired person with a guide dog being refused entry to a cafe because of the dog. That is section 5 (1) (a) discrimination even though the cafe owner did not know that the person was visually impaired. The reason for the refusal was the dog, and that is causally connected with the visual impairment. So for Ms Farnsworth, even if the Council had not known that her medical condition amounted to a disability, nonetheless any less favourable treatment by reason of her history of depression would amount to section 5 (1) (a) discrimination regardless of what they knew or did not know about the extent and implications of the condition. Further, the EAT also confirm that although knowledge of a disability may well be relevant to the issue of justification under section 5 (1) (b), it is not essential. They refer again to the cafŽ owner example, and state that whether or not the cafŽ owner was justified in refusing entry to the dog does not depend on knowledge of the dog-owner's visual impairment. It is about what, objectively, was the reason for the treatment.
This clear restatement of the Clark decision is welcome. The next stage in the debate is how far the Clark principles apply to other aspects of the DDA, such as the justification provisions. In Quinn v Schwarzkopf Ltd where the Scottish Employment Appeal Tribunal were again dealing with a situation where the employers were maintaining that they did not know of Mr Quinn's disability. The original Employment Tribunal had held that the employer had unjustifiably discriminated, and they should have appreciated that Mr Quinn's condition amounted to a disability. The Appeal Tribunal agreed. They held that in these circumstances it was not open to the employers to advance a defence of justification. Having not realised that Mr Quinn was disabled, the employers could not subsequently think up a justification defence. Accordingly Mr Quinn was entitled to succeed. Although undoubtedly the right decision, what underpins this decision is the EAT's assumption that knowledge is a prerequisite for a justification defence. This may not be correct as different divisions within the EAT have adopted different approaches as to whether it is necessary for an employer to know of a disability or of its effects in order to be able to justify both less favourable treatment and a failure to make reasonable adjustments. It will take a decision from the Court of Appeal to clear the matter up.