A person has a ‘disability’ if he or she has a mental impairment which has a substantial and long-term adverse impact on his or her ability to carry out normal day-to-day activities – section 1 of the Disability Discrimination Act 1995. Alcohol and drug addiction as well as five anti-social conditions have been excluded from those suffering from mental impairment constituting disability for purposes of the DDA since the regulations were brought into force in 1996:
- A tendency to set fires;
- A tendency to steal;
- A tendency to physical or sexual abuse of other persons;
- Voyeurism; and
- Addiction to or dependency on alcohol, nicotine, or any other substance (other than in consequence of the substance being medically prescribed.
Thus in one fell swoop many of those who take up a large proportion of the psychiatric services of the NHS appear to have been removed from the scope of disability discrimination protection in employment and elsewhere. Attempts have been made to ameliorate these excluded conditions by arguing for a narrow construction and that the exclusion should not apply where, for example, the tendency to physical abuse results from a mental illness, and as Power v Panasonic UK Ltd (2003), that it was unnecessary to consider how an impairment was caused, as she suffered from both depression and alcohol addiction.
Other cases have adopted a wider and more restrictive construction. Conflicting decisions of the Employment Appeal Tribunal will now be subject to the decision of the Administrative Court in Governing Body of X Endowed Primary School v Special Educational Needs & Disability Tribunal (2009) (see below).
The case law is littered with examples of those with mental health problems who have not been able to obtain assistance in their employment and other problems under the act. These are not just because of the excluded conditions. Sometimes they have failed to provide sufficiently cogent evidence. For example, in Rugamer v Sony Music Entertainment UK Ltd and McNicol v Balfour Beatty Rail Maintenance Ltd (2001) their claims to be disabled failed because no psychiatric evidence was produced on their behalf and all they could argue was the possibility of ‘functional or psychological overlay’. Despite a favourable ruling on the condition aspect, in Murray v Newham CAB (2003) Mr Murray still failed in his claim when the CAB refused him employment, having disclosed that he had been to prison for stabbing a neighbour with a knife in an episode of paranoid schizophrenia.
In Mr Butterfield’s case (2005), he lost when he was dismissed after his employers discovered that he had a conviction for indecent exposure committed while suffering from depression.
Ms Swift lost before the ET and the EAT in her claim against the chief constable of Wiltshire (2004) because she failed to show that her original disability was more probable than not to recur, in her argument that panic attacks suffered on a return to work after two periods of mental illness, caused by bullying and harassment, were exacerbated by her being required to work alongside the two colleagues she had complained about.
Miss Woodrup (2002) failed to persuade the Court of Appeal that if her counselling were to cease her anxiety neurosis would deteriorate because she did not produce medical evidence to that effect.
Finally, Mr Malcolm who sublet his flat and argued that he would not have done so, but for his schizophrenia, also fell outside the act’s protection in the particular circumstances applicable to that case as the House of Lords held in London Borough of Lewisham v Malcolm (2008). A case of great significance in disability discrimination law generally.
On 5 December 2005, the restriction on the meaning of impairment ‘as including an impairment resulting from or consisting of a mental illness only if the illness was a clinically well-recognised illness’ was swept away. The interpretation of the statutory definition of a disabled person for purposes of those suffering from mental impairment (as well as physical impairment) was also significantly altered by the European Court of Justice decision in Chacon Navas v Eurest Colectividades SA (2006). This decision indicates that the concept of ‘disability’ must be understood as referring to ‘a limitation which results in particular from… mental or psychological impairments and which hinders the participation of the person concerned in professional life’.
In Chief Constable of Dumfries & Galloway v Adams (2009), the EAT explained that the use of the term ‘professional life’ in Chacon Navas meant that when assessing, for the purposes of section 1 of the DDA, whether a person is limited in their normal day-to-day activities it was relevant to consider whether they are limited across a range of employment situations. ‘It was plainly not meant to refer to a special skill test such as a silversmith or watchmaker limited in some activity that the use of specialist tools required. It enables a tribunal to take account of an adverse effect that is attributable to a work activity that is normal in the sense that it is to be found in a range of different work situations.’ Thus night-shift work being normal, an inability to do it constituted an adverse effect on a normal day-to-day activity.
In the earlier decision of Paterson v Commissioner of Police of the Metropolis (2007) due to his dyslexia an expert recommended that Mr Paterson be allowed additional time to sit the examinations for promotion. In overruling the ET, the EAT classed as ‘normal’ day-to-day activities, the conduct of assessments or the sitting of examinations. Mr Justice Elias formulated the correct approach for deciding on the severity of a disabling condition as involving inquiry as to how the individual carries out the activity compared with how he would do it if not suffering the impairment. If that difference is more than the kind one might expect taking a cross-section of the population, then the effects are 'substantial'.
However in Chief Constable of Lothian and Borders Police v Cummings (2010) where a special constable failed the screening for the requisite vision standard to become a regular constable the EAT held that the eyesight impairment was limited and minor in character, and Chacos Navas and Paterson were not authority for a broad proposition that being afforded general participation in or access to professional life is a day-to-day activity. Furthermore, the status of disability for the DDA cannot be dependent on an employer’s decision as to how to react to the employee’s impairment.
So those with limited learning skills due to mental impairment of a substantial nature are unlikely to be given access to the higher professions by route of complaint under the DDA but at the margins these decisions could assist those suffering from mental impairment.
In Ministry of Defence v Hay (2008) Mr Justice Langstaff , sitting in the EAT, reminds us that the concept of disability in the act is not a medical model but a ‘functional’ model because the definition focuses on ‘impairment’ and an ‘impairment’ is not the same as a ‘disability’. It is directed towards what a claimant cannot, or can no longer, do at a practical level. Thus a constellation of symptoms which lasted over 12 months, even though the precise disability on which the claim was based according to expert evidence would have lasted less than 12 months, can be regarded as a combination of impairments with different effects, to different extents, over periods of time which overlapped and which constitutes a qualifying disability.
This principle, it will be seen, could have a substantial impact in a mental impairment case – for example depression, brought about by a physical condition, such as an illness or accident from which the claimant had made a physical recovery, for purposes of establishing a long term adverse effect. The decision also echoes the EAT decision in Ms Leonard’s case – Leonard v Southern Derbyshire Chamber of Commerce (2001) where it was emphasised that, although she could carry out many normal day-to-day activities, the indirect effects of her clinical depression made any activity more than usually fatiguing and affected her ability to sustain an activity over a reasonable period because of tiredness associated with the depression.
In SCA Packaging Ltd v Boyle (2009) the House of Lords had to deal with how a claimant presented at the time of the decision complained of in relation to an impairment which had ceased due to treatment to have a substantial adverse effect on his ability to carry out normal day-to-day activities but where the effect was ‘likely’ to recur. The statutory guidance equated ‘likely’ as meaning ‘more probable than not’. The Lords ruled that this test was too restrictive. The word ‘likely’ as used in the statute was in the sense of ‘could well happen’. In other words, that there was a significant risk of the event happening.
This wider test is likely to be more easily satisfied by people with mental impairments that wax and wane over time and for example it might have assisted Mrs Swift in her case against the chief constable of Wiltshire.
In Governing Body of X Endowed Primary School v Special Educational Needs & Disability Tribunal (2009) the Administrative Court had to consider an appeal from the governing body against a decision of the tribunal that the governing body should apologise to the parents of a 10-year-old boy who suffered from attention deficit and hyperactivity disorder (ADHD) and who had assaulted a member of staff who was attempting to remove him from class following an incident of disruptive behaviour. The tribunal concluded that there had been a failure to make a reasonable adjustment by getting specialist support before the incident occurred. The school argued that the only aspect of the boy’s ADHD in which there had been a failure to make a reasonable adjustment was his tendency to physically abuse other persons, which fell within the exclusion in the regulations.
Lloyd Jones J held that the word ‘condition’ covered both a freestanding condition and the symptoms or manifestations of an underlying impairment and the protection of the DDA was not intended to extend to excluded conditions, whether or not they are a manifestation of an underlying protected impairment. However, the adjustment which the tribunal found not to have been made did not relate to the boy’s tendency to physical abuse. It related to the school’s management of pupils with ADHD generally and the appeal failed.
Thus unless itself overruled this decision means the exception conditions will continue to have a significant impact in reducing the numbers of those suffering from mental impairment who can avail themselves of the protection provided by the DDA.
[This Article comments on some of the recent disability discrimination cases affecting those with mental health impairment as we wait to see if the Equality Act 2010, pushed through by the Labour government in its last month in office, will be brought into force. Unless new and different guidance appears it is the author’s view that the Equality Act should not have much (if any) effect on the issues discussed above, although the new form of claim of ‘discrimination arising from disability’ without the need for a comparator will (if brought into force) provide an additional route for those suffering from mental impairment to seek discrimination protection. See particularly annex 4 to the Equality Act Impact Assessment (Royal Assent) published in April 2010 by the Government Equalities Office]
David Christie is a barrister at 7 Bedford Row Chambers in London