As
disability discrimination claims increase, tribunals will have to learn to
grapple with the problems posed by conflicts between medical opinion and legal
niceties, by Linda Goldman and Joan Lewis
A growing volume of cases are coming to the tribunals under the Disability
Discrimination Act 1995 – the DDA – as people who are disabled gradually become
aware of their rights and of the obligations of their employers to grant them
equal opportunities in the workplace.
Disability may be converted to capability where reasonable adjustments are
made to the workplace or system of work so as to enable people to carry out the
functions of their jobs. Some disabilities are not overt and others may not be
declared. Careful risk assessment and sensitive handling of ill-health
procedures on behalf of employees may reduce employers’ exposure to
discrimination claims.
Disability defined
The DDA defines an individual as being disabled if they have a physical or
mental impairment which has a substantial and long-term adverse effect on their
ability to carry out normal day-to-day activities. "Long-term"
applies not only to conditions that have lasted at least 12 months but also
those that are likely to last for that long or are likely to recur after
periods of remission. Empirical observations show that persons who are disabled
within the meaning of the Act often do not see themselves in that light and
only do so when an exacerbation of an underlying condition occurs.
There are anecdotal reports of clients with long medical histories who do
not necessarily provide the relevant information on job application forms, and
in particular tick the "No" box when asked to indicate if they have a
disability. This thereby precludes employers from making reasonable adjustments
which could prevent flare-ups of the various conditions.
Legal standpoint
In establishing whether the applicant comes within the definition of
disability, reliance is placed on the full range of definitions within the Act
itself, supplemented by the HMSO Code of Practice and the guidance to the Act.
The tribunals are increasingly helped by previous decisions of the courts.
Often, employers do not take account of the full implications of
"long-term" when dealing with people with health problems. While many
disabled people are healthy and able to fulfil their job descriptions, some
people who go sick may acquire the legal status of disability, depending on the
nature of their illness and the effect it has on them.
Experts need to remember that the definition of disability is a legal one.
Medical evidence is important but is only provided within the judicial system
to assist the courts. At one end of the spectrum of reliance on medical opinion
is the case of Kapadia v London Borough of Lambeth, 2000, IRLR 699 where the
tribunal ignored medical evidence of depression and came to the conclusion that
the applicant was not disabled. This was eventually overturned by the Court of
Appeal. The other end of the spectrum is that of over-reliance on medical
opinion. In Abadeh v British Telecommunications plc, 2001, IRLR 23, the
tribunal wrongly relied on an expert’s report that the applicant was not
disabled under the DDA. They should have considered for themselves whether the
particular impairment had a substantial effect.
Employer’s knowledge of disability
An employer who is taken by surprise on receiving a disability
discrimination claim may not rely on lack of knowledge of the specific
impairment suffered by the employee. Although no decision has yet directly
referred to the "hindsight approach", it is arguable that liability
for discriminatory acts or omissions could arise where the employer knew or
ought to have known of a disability.
In Heinz v Kenrick, 2000, IRLR 144, the employer dismissed the employee
after almost a year’s absence. Chronic fatigue syndrome was not diagnosed at
the time of dismissal but symptoms were reported to the employer’s medical
adviser. The dismissal was discriminatory. Thus, it appears that the
requirement prohibiting discrimination does not require the employee to inform
the employer that he suffers from a particular condition. This means that an
employer could discriminate on the grounds of disability even where there is no
formal report, certificate or statement by or from the employee that he is
disabled.
It is difficult for an employer to make reasonable adjustments without
actual knowledge of the need for those adjustments to be made. Occupational
health personnel, with their opportunity for involvement, can provide useful
and confidential input into adjustments without offering a specific reason.
Recent developments
The DDA recognises psychological illness has as much of an impact on
day-to-day activities as physical impairment.
However, two recent decisions were upheld that employees were not disabled
under the Act where physical symptoms were the result of psychological overlay.
These cases will go to the Court of Appeal as part of a process that is leaving
practitioners on a legal cliff-hanger.
Occupational health personnel may think that, if the applicants succeed
ultimately, it could be the start of a malingerers’ charter – provided that the
alleged malingerers read the law reports. There are others who are of the
opinion that, if the Act makes provision to protect those suffering from a
descriptive impairment, causation, whether or not psychosomatic, is irrelevant.
The World Health Organisation Classification of Disease defines impairment
as "any loss or abnormality of psychological, physiological or anatomical
structure or function". If that is the approach, the employee needs only
to show as a matter of fact that they have an impairment of function, whether
mental or physical. From then on, they are entitled to the protection of the
Act. It could get quite busy for the occupational health department if the
tribunals accept conditions exacerbated by psychological overlay as coming
within the Act.
Linda Goldman is a barrister at 7 New Square, Lincoln’s Inn. She is head
of training and education for ACT Associates & Virtual Personnel. Joan
Lewis is a senior consultant and director of Advisory, Consulting &
Training Associates and Virtual Personnel, employment law and advisory service
consultancies
Case roundup
Effect of psychological overlay on physical symptoms
Rugamer v Sony Music Entertainment UK and McNicol v Balfour Beatty Rail
Maintenance, 2001 IRLR 644
Both cases cover the same point about the dividing line between
physical and mental impairment, the former not being defined in the DDA.
Disability is "a physical or mental impairment". The mental
impairment must result from or consist of "a clinically well-recognised
illness". Both applicants claimed to be disabled under the DDA but
presented no medical evidence to support, nor did they claim to have, a mental
impairment. The EAT said there is a "dividing line" between mental
and physical impairment which "has to depend … not on whether a physical
or mental function or activity is affected (a physical impairment may affect
mental activities as well as physical ones, and vice versa) but rather on
whether the nature of the impairment itself is physical or mental". The
tribunals’ decisions were upheld that "the functional or psychological
overlay, which appeared to be the only explanation for the restriction of the
applicants’ movements and activities was not a physical impairment within the
meaning of definition of disability in the DDA".
The decision refers to the question of whether the DDA
definition can be applied "to a state of affairs described medically as
functional or psychological ‘overlay’: where a person claims to be suffering
from physical injury, but the doctor is satisfied that his or her symptoms are
not the manifestation of any organic pathology. In everyday language, according
to the medical evidence the person concerned is making it up, even if
unconsciously…".
Watch this space. The implication that an impairment must be
physical or mental will be considered by the Court of Appeal.
Dismissal of schizophrenic
justified
A v London Borough of Hounslow, IDS Brief 694, 2001, EAT
A applied for a job as a laboratory technician in a school and
was appointed subject to a satisfactory medical report. He refused to take
medication for schizophrenia, symptoms of which had previously included
fantasies of mass murder. The occupational health physician said that the
chances of relapse were small but the consequences could be devastating if A
had a relapse and acted out his fantasies. The employer was justified in
dismissing him as there were no reasonable adjustments it could have made to
enable him to work in the school. The dismissal was fair because, without
medication, he posed a risk to other staff and pupils.
He also failed to establish that the defence of justification was
incompatible with the Human Rights Act 1998 (HRA). The events of which he
complained preceded the Act coming into force. Also, the refusal to offer or
maintain employment under the terms of the DDA was not a breach of Article 8 of
the HRA, the right to respect for private life and family which
"encompassed the right to earn a living and develop relationships at
work".
Evidence of how an employee carries out work relevant to
assessment of ability to carry out normal day-to-day activities
Law Hospital NHS Trust v Rush, IDS Brief 693, 2001Â Â
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R, a nurse, injured her back in 1984 and was assessed as having
a permanent 7 per cent disability. She suffered another injury in 1997 and was
off work for two years until she was dismissed on the grounds of ill-health.
The employment tribunal determined that R was disabled under
the DDA because, although she had performed her work duties for over 13 years
before the second accident, her normal day-to-day activities were affected. She
was unable to lift a kettle to the tap to fill it, had to sit to do ironing
and, among numerous other items cited, could not walk more than 50 metres. The
Court of Session (Scotland’s Court of Appeal) said that the tribunal correctly
looked at what the employee could not do, or could only do with difficulty,
rather than on what she could do. There was no evidence to show that she was
able, without difficulty, to carry out acts at work which would appear to be
precluded at home, such as lifting moderately heavy weights. The tribunal found
R to be a credible witness as to her condition. The guidance confirms that
normal day-to-day activities take their natural meaning and do not include
work. Inconsistency between domestic and work abilities can be considered by a
tribunal in assessing the credibility.
