Mr Rayner was employed by Turning Point, an organisation that deals with health and social care matters. He was subject to suspension and disciplinary action that resulted in his dismissal. He was reinstated but, ultimately, his employment was terminated on 31 March 2008. Mr Rayner issued employment tribunal proceedings complaining of both unfair dismissal and disability discrimination based on a depressive illness. A medical expert was jointly instructed to give an opinion as to whether or not Mr Rayner was disabled through mental impairment for the purposes of the Disability Discrimination Act 1995 (DDA).
The employment tribunal decided that Mr Rayner was not disabled. Guided largely by the opinion of the medical expert, the employment judge found that Mr Rayner had not suffered from a “mental impairment” either during the material period for the purposes of his claim, or in the past. To avoid doubt, the judge also specified that, even if he had found a mental impairment, there was insufficient evidence to show that the impairment either had a substantial long-term adverse effect on Mr Rayner’s abilities to carry out normal day-to-day activities or was prevalent at the material time or likely to recur.
The EAT decided that the employment tribunal judge had erred in his approach and that a different tribunal should reconsider the question of disability.
The joint medical expert’s report was the principal material for the tribunal’s decision. However, there were various flaws with this report. First, the expert had focused on a medical diagnosis and had therefore applied a higher standard to the question of disability than is required by the DDA. Also, the expert had failed to deal with certain evidence related to Mr Rayner’s condition, in particular a GP’s medical certificate indicating “anxiety and depression” and advising him to stay off work for a six-week period.
The EAT observed that, where a condition of anxiety and depression is diagnosed by a GP and the GP has advised the patient to refrain from work, that is, in itself, evidence of a substantial effect on day-to-day activities. Also, the EAT held that a GP treating a condition such as depression over a long period of time is in a strong position to give an authoritative assessment of disability and sometimes may be in a better position to do so than a consultant who examines a claimant on only one occasion.
Previously, an individual claiming to be disabled through a mental impairment had to demonstrate that their impairment was “clinically well recognised”. This requirement was removed in late 2005 and, since then, it has arguably become easier for claimants with mental impairments to establish disability. The EAT’s judgment in this case continues this trend. Employers should, in particular, heed the comments made in relation to a GP’s diagnosis of depression, which serve to emphasise that, when managing an employee who has been so diagnosed, the prudent approach is to take account of disability discrimination laws.
Mary Clarke, employment partner, DLA Piper
Practical guidance from XpertHR on disability discrimination