A GP's opinion on depression is valid in an employment tribunal

J v DLA Piper UK LLP [2010] UKEAT 0263_09_1506

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The Claimant is a barrister who has suffered from several bouts of depression. In 2008 she was interviewed for a job with the Respondents, a firm of solicitors and offered a job. She subsequently informed a manager in the Respondent's HR department about the depression and he was allegedly unsympathetic and asked her to reconsider taking the job as it was a high-pressure one. The Claimant was also told that she would not be allowed to do any work from home and a few days later had the job offer withdrawn owing to a 'recruitment freeze'.

The Claimant made an application to an Employment Tribunal (ET)complaining of discrimination contrary to the Disability Discrimination Act 1995. The ET decided that the Claimant was not disabled and struck out her claim.

EAT recognised that the Framework Directive applyies to cases of perceived disability and that a tribunal should:

• Accept a GP's opinion on depression as valid
• Make separate conclusions regarding impairment and adverse effect
• Avoid proceeding by rigid consecutive stages.
• Make findings as to whether the claimant’s ability to carry out normal day-to-day activities is adversely affected and then consider the question of impairment.
• Not dig too deeply into medical issues if an adverse effect or impairment has been found to exist as the medical condition may be inferred from the adverse effect.
• Investigate the effect of an impairment rather than its cause (as the cause may be hard to establish).

The Claimant’s appeal argued that apart from the Tribunal erring in law regarding her disability, that the Respondents withdrew the job offer whilst believing that she was disabled. The Claimant maintained that as perceived disability, contravenes EU law such behaviour is therefore proscribed by the 1995 Disability Discrimination Act.

The law that was considered was:

Section 4 (1) of the 1995 Act whereby it is unlawful for an employer to discriminate against a disabled person

The relationship of sub-sections (1) and (5) is explained in City of Edinburgh Council v Dickson (UKEATS/0038/09) although possibly removed by the decision of the House of Lords in London Borough of Lewisham v Malcolm [2008] IRLR 700.

Even if an impairment disappears as a result of treatment, if it may recur the Claimant is still treated as suffering from that disability for the purposes of the law. Such an adverse effect that might recur under para. 6 is known as a “deduced effect”.

The Claimant argued that her case was that of a “deduced effect” in that owing to her treatment she was at the time she was discriminated against able to carry out normal day-to-day activities.

The GP's notes were used by the Claimant as evidence of disability (a depressive disorder).

Four conditions need to be considered:

Morgan v Staffordshire University [2002] ICR 475 concerning mental impairment was referred to for authority for proposing that “vague references to stress, anxiety and depression are unlikely to be sufficient”.

The Claimant's counsel warned of the difficulties in making impairment into a separate hurdle for a claimant to jump and argued that the impairment issue as a self-contained question was now anachronistic since the repeal of para. 1 (1) of Schedule 1. Earlier authorities which treated the impairment and adverse effect issues as separate were Goodwin, College of Ripon and York St. John v Hobbs [2002] IRLR 185 and the Court of Appeal case of McNicol v Balfour Beatty Rail Maintenance Ltd [2002] ICR 1498

In para.38 the EAT agreed that in many or most cases digging too deeply into medical issues will not be necessary if an adverse effect or impairment has been found to exist. The medical condition may be inferred from the adverse effect. This fits with the pragmatic approach to the issue of impairment in Lindsay P in the Ripon College case and endorsed by Mummery LJ in McNicol

It's not necessary to categorise a condition as a physical or mental impairment as it's underlying cause may be hard to establish. Apart from an excluded condition the effect of an impairment not its cause is important.

However the EAT stressed that the Guidance to the DDA as well as the Act itself requires consideration of the impairment. A tribunal therefore needs to:

1. Make separate conclusions regarding impairment and adverse effect (with adverse effect considering questions of substantiality and long-term effect as per Goodwin).
2. Avoid proceeding by rigid consecutive stages.
3. Make findings as to whether the claimant’s ability to carry out normal day-to-day activities is adversely affected where there is a dispute about the existence of an impairment. The question of an impairment will follow on from this.
4. The Ripon College and McNicol cases remain valid apart from the repealed provisions of para. 1 (1) of Schedule 1.
5. The Framework Directive and the reasoning of the European Court of Justice (ECJ)in Coleman v Attridge Law [2008] ICR 1128 concerned with “associative discrimination” presumably extends protection from discrimination to cases of disability .

Regarding the difficulty of distinguishing between clinical depression and a reaction to adverse circumstances the EAT in para. 42 says that a tribunal should begin by considering the adverse effects. If the claimant has been adversely affected with his normal day-to-day activities for twelve months or more it would be common-sense to regard him as suffering from depression.

The effect of the repeal of para. 1 (1) of Schedule 1 is that the claimant does not need to prove that he is suffering from a “clinically well-recognised illness”(just that there is an impairment leading to the adverse effects)

In para. 52 the EAT stated that a GP is qualified to give his opinion on whether a patient is suffering from depression and the relevance of the DDA95 although his opinion will carry less weight than that of a specialist.

The EAT addressed the perceived disability part of the claim whereby the Framework Directive (EU Council Directive 2000/78/EC) prohibits the subjecting of an employee (or potential employee) to a detriment on the grounds of the disability, without allowing the case to progress on this point to the ECJ(for a number of reasons including that of the raising of new points of law in the EAT: Jones v Burdett Coutts School [1998] IRLR 521 ).

The Directive does not explicitly extend to cases of perceived disability (ie where the discriminator acts against his victim thinking him to be disabled when in fact he is not). However the language of art. 1 and the reasoning of the European Court of Justice (ECJ)in Coleman v Attridge Law [2008] ICR 1128 concerned with “associative discrimination” presumably extends to cases of perceived disability .

The broad approach of the House of Lords in Ghaidan v Godin-Mendoza [2004] 2 AC 557 allows for the Directive prohibiting perceived disability to be given effect in domestic law even when the DDA95 confers rights only on “disabled persons”.

The Claimant in this case also sought to rely on the analogous associative discrimination case in EBR Attridge LLP v Coleman [2010] ICR 242.

The appeal was allowed and the disability issue remitted to a fresh Employment Tribunal.

The Claimant was represented at the ET by the Equality and Human Rights Commission and represented herself at appeal in the EAT.

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