The Department for Work and Pensions v Conyers (Disability Discrimination: Disability)

A finding that a mental impairment has a long-term adverse effect requires a structured assessment of the statutory elements. Where there are distinct periods of mental illness, the tribunal must make findings on whether each period caused a substantial adverse effect on normal day-to-day activities. It cannot treat later symptoms as evidence of substantial effects in an earlier period.

Recurrence can engage Schedule 1 only if there was a substantial adverse effect capable of recurring. The likelihood of recurrence means that it could well happen and must be assessed by reference to what was known at the relevant time. A period of depression or anxiety does not, without sufficient evidence of substantial adverse effects, establish disability under the Disability Discrimination Act 1995.

The claimant, a long-serving employee of the Department for Work and Pensions, brought claims for unfair dismissal and disability discrimination. At a pre-hearing review, an Employment Judge held that she had been disabled by reason of mental impairment throughout May 2007 to May 2010.

The employer appealed the finding concerning an absence from November 2007 to April 2008. The claimant had accepted in her witness statement that this first period did not meet the statutory disability criteria. The Employment Judge nevertheless treated the first and later periods of illness as supporting a finding of disability throughout.

After obtaining the Employment Judge’s note of the claimant’s evidence, the Appeal Tribunal considered whether there was evidence of a substantial adverse effect during the first period and whether the disability issue should be remitted.

1. Appeal allowed. The finding that the claimant was disabled by reason of mental impairment throughout the material period was set aside. There was no evidential basis for finding a substantial adverse effect on normal day-to-day activities during the first period of absence.

2. The statutory inquiry required findings about substantial adverse effects in the first period before recurrence could be used to establish a long-term effect under Schedule 1. The Employment Judge’s global finding failed to distinguish the evidence relating to the two periods of illness. The later evidence of concentration and memory difficulties did not establish such effects in the earlier period.

3. The only evidence specific to the first period concerned withdrawal from theatre attendance and perhaps socialising. It did not demonstrate an effect on concentration, memory, or another relevant capacity that was substantial. The claimant’s contemporaneous concession and the medical evidence were therefore correct on that issue. A period of depression or anxiety does not itself establish substantial adverse effects or disability.

4. The Appeal Tribunal applied the structured approach in J v DLA Piper UK LLP, [2010] ICR 1052. In cases involving separate episodes of mental illness and recovery, tribunals must make period-specific findings before determining whether effects are long-term or likely to recur. “Likely” means “could well happen” and is assessed on the facts known at the relevant time.

5. The reasoning supporting disability during the second period also could not stand because it depended on the defective finding about the first period. It remained open to find disability for some or all of the second period, from an appropriate date. That issue was remitted for a fresh hearing before a different Employment Judge, applying the criteria in Sinclair Roche and Temperley v Heard & Anr, [2004] IRLR 763.

• Employment Appeal Tribunal: Allowed the employer’s appeal and remitted the issue of disability by reason of mental impairment for a fresh hearing before a different Employment Judge.
• Employment Tribunal: Employment Judge Little, sitting alone in Leeds, held on 17 April 2013 that the claimant was disabled throughout May 2007 to May 2010 within the meaning of the Disability Discrimination Act 1995.