Depression and disability claims

This is an important decision for employers, given that compensation in a successful disability claim is unlimited.  The key question is always whether the condition that the claimant suffers from qualifies as a disability under the Disability Discrimination Act 1995 (‘DDA’), and this decision makes it clear that employers and tribunals should discount a G.P.’s opinion at their peril.

The claimant in this case had been off sick with depression whilst working for a government department.  She subsequently suffered a further depressive episode whilst working as a support lawyer for another firm.

When the claimant applied to DLA Piper, the Respondent in this case, for a position, they asked her to complete a medical questionnaire, where she disclosed her history of depression.  At this point, the Respondent withdrew their offer stating the reason for this was a recruitment freeze.  The claimant brought a claim against them alleging that the real reason for the withdrawal of the offer, was her depression, which she said was a disability for the purposes of the DDA.

The tribunal at first instances, rejected her claim on the basis that her ‘impairment’ was minor or trivial, and therefore did not fall within the remit of the DDA.

The claimant appealed to the EAT who said that tribunals should state their conclusions on the issues that determine whether an employee is disabled for the purposes of the DDA separately, i.e. deal with the four issues that define a disability, namely, a mental impairment, and that its effect is adverse, substantial and long term.

The EAT noted a crucial technical difference between clinical depression and a reaction to ‘life’s adverse effects’ and noted that whilst a reaction to adverse situations may produce low moods and anxiety, it would not be covered by the DDA.  The EAT went on to say however, that this distinction should not cause problems in the context of DDA claims because to attract protection under the DDA, a condition must be ‘long term’.

An important factor in this case is that the EAT gave significant credence to the report provided by the Claimant’s G.P., which the tribunal at first instance had disregarded on the basis that it was not provided by an ‘expert’.  The EAT said that a G.P. was qualified to express an opinion about whether a patient is suffering from depression.  The EAT said that disregarding the G.P.’s evidence in this case rendered the tribunal’s decision unsafe and the case was remitted for reconsideration.

Employers should therefore always seek a G.P.’s opinion in regard to employee’s or as in this case, potential employees where suggested mental illness is declared.  However, a good point for employers to come out of this case, is that the EAT has drawn a distinction between clinical conditions and reactive conditions that are so often cited on sick notes as ‘stress’.  That is not to say that ‘stress’ should be disregarded, but this clarifies the difference between what is potentially two very different conditions, which should make it easier for employers to deal with employees who are having a reaction to life’s day to day stresses.