J v DLA Piper UK LLP

The impairment and adverse-effect questions under the Disability Discrimination Act 1995 remain distinct, but tribunals should approach them flexibly rather than through rigid consecutive stages. In difficult mental-health cases, the tribunal may first assess the long-term adverse effect on normal day-to-day activities and then infer the existence of an impairment where appropriate.

Clinical depression is distinct from low mood or anxiety arising merely as a reaction to adverse circumstances, although the distinction may be difficult in practice. Recurrent episodes may constitute one continuing impairment between episodes if supported by medical evidence. A general practitioner is competent to give evidence on depression and related statutory issues; that evidence should not be disregarded merely because it is not specialist evidence.

The claimant, a barrister, alleged that a law firm withdrew a job offer because she disclosed a history of depression. The Employment Tribunal determined, as a preliminary issue, that she was not disabled in May or June 2008 and dismissed the claim.

On appeal, the claimant challenged the Tribunal’s approach to impairment, substantial adverse effect, recurrence and deduced effect. She also sought to raise a new argument that discrimination based on perceived disability was prohibited by EU law. The central issue was whether the Tribunal’s determination of disability could stand.

1. Appeal allowed and disability issue remitted. The Employment Tribunal’s finding that the claimant had not suffered a sufficiently substantial adverse effect during 2005 was perverse. The evidence established a mental impairment and, for part of that period, a substantial adverse effect on normal day-to-day activities.
2. The impairment issue remains distinct from the adverse-effect issue. However, tribunals should not apply rigid consecutive stages. In a disputed mental-health case, they may first assess whether normal day-to-day activities have been adversely affected on a long-term basis, then consider whether the evidence supports an inference of impairment. College of Ripon and York St. John v Hobbs [2002] IRLR 185 and McNicol v Balfour Beatty Rail Maintenance Ltd [2002] ICR 1498 remained authoritative, subject to their references to the repealed statutory requirement.
3. The Tribunal was entitled in principle to distinguish clinical depression from symptoms caused by a reaction to adverse circumstances. That distinction did not restore the former requirement of proving a clinically well-recognised illness. The Tribunal’s reference to Morgan v Staffordshire University [2002] ICR 475 was inappropriate to the extent that it relied on the repealed requirement.
4. Recurrence required careful consideration. Separate illnesses separated by a long symptom-free period would not ordinarily constitute a continuing impairment. Conversely, recurrent episodes may form one condition continuing between episodes, but medical evidence is required. The Tribunal had to consider whether earlier adverse effects were likely to recur for the purposes of paragraph 2(2) of Schedule 1.
5. The Tribunal wrongly discounted or failed to address Dr Morris’s evidence because she was a general practitioner. A GP is qualified to express an opinion on depression and associated statutory questions. The weight of that evidence may be less than specialist evidence, but it cannot simply be ignored. The Tribunal’s reasoning on impairment, recurrence and deduced effect could not safely stand.
6. The claimant was not permitted to raise the perceived-disability argument for the first time on appeal. The issue might require a reference to the European Court of Justice and should not be decided on assumed facts. The claimant remained free to seek permission to amend before the Employment Tribunal.

• Employment Appeal Tribunal: allowed the appeal and remitted the disability issue to a differently constituted Employment Tribunal.
• Employment Tribunal: held that the claimant was not disabled at the material time and dismissed the claim.