Is mental illness classed as a disability?

The claimant, known as 'J', brought a claim under the Disability Discrimination Act (DDA), after alleging a job offer by DLA Piper was withdrawn in 2008 once she revealed her mental health problems.

J had two interviews before being offered the job, which she accepted verbally. But when she disclosed her depression, she claims the job offer was withdrawn on the basis of a 'recruitment freeze'.

At an initial employment tribunal hearing, the claimant was told she was not disabled.

The EAT held that the employment tribunal's approach was flawed and returned the issue of whether or not J was disabled to a new tribunal. 

The key  points of the EAT's ruling were as follows:

• The EAT cautioned employment tribunals against taking an overly rigid or formulaic approach as to whether the existence of an 'impairment' has been proved.  Where there is a dispute about the existence of an impairment, it makes sense for tribunals to start with the question of whether the claimant's ability to carry out day-to-day activities is adversely affected.  In other words, the starting point is the effect of the claimant's condition, as opposed to the clinical label which is attached to it.  The EAT did, however, state that it remains good practice for tribunals to state conclusions separately on the question of 'impairment' and 'adverse effect'.

• The EAT said that a GP is fully qualified to express an opinion on whether a patient is suffering from depression. 

• The EAT acknowledged that while there is technical distinction between 'clinical depression' (which is an illness) and a reaction to adverse circumstances (which is not), little turns on the distinction in practice. 

This is because the tribunals are (or should be) primarily concerned with the impact of any symptoms of the claimant's ability to carry out day-to-day activities.  The clinical label (if any) is less important. 

The claimant also  argued that even if she did not have a disability as defined by the DDA, she was perceived by the employer to have a disability and therefore had a claim in the light of the European Framework Employment Directive. This was by analogy with the Coleman case on discrimination by association.

The EAT disagreed and refused to allow the perceived discrimination case to be raised in this appeal to it.

The EAT said that whether 'perceived' disability is covered by the relevant European directive would require a reference to the European Court.

The EAT refused to make such a reference at present, given the point had not been raised in the lower tribunal and further fact-finding would be required.

Practical Considerations

This case highlights that employers that react negatively to a job applicant disclosing a history of mental illness leave themselves open to disability discrimination claims.

Furthermore, it may well be that employers will face more disability claims following the introduction of the Equality Act which introduces the concept of "perceived" discrimination.