Complainants should back up mental impairment claims with medical evidence
which employers must have chance to refute
Ever since the Disability Discrimination Act became law there has been a lot
of debate as to whether conditions such as ‘stress’ and ‘anxiety’ qualify as
‘mental impairments’ within the scope of Section 1 of the DDA. In Morgan v
Staffordshire University, 2002, IRLR 190, the Employment Appeal Tribunal has
sought to clarify this issue.
Ms Morgan was employed by Stafford University as a catering worker. While at
work she was assaulted by a female supervisor. She was offered alternative jobs
but turned them down because it could not be guaranteed she would not encounter
the supervisor. She claimed she had been constructively dismissed.
In support of her claim, Ms Morgan’s tribunal application stated that
"my employer forced me into this position by its failure to recognise, in
dealing with my supervisor, the mental effect of her assault on me and the
unreasonable expectation that I could continue to work for her". However,
subsequently her claim was amended to add a complaint under the DDA.
This was challenged by the university and a preliminary hearing was held to
determine whether Ms Morgan was a disabled person within the meaning of Section
1 of the DDA.
No medical evidence was given at the preliminary hearing, although copies of
Ms Morgan’s medical notes were produced. The Employment Tribunal ruled that
although it was clear from those notes that Ms Morgan was suffering from stress
and anxiety (she was not suffering from a ‘mental impairment’, as defined by
Schedule 1(1) to the DDA and therefore was not a disabled person within the
scope of Section 1 of the DDA.
EAT decision
Ms Morgan appealed. Dismissing the appeal, the EAT ruled that:
– The Employment Tribunal was entitled to conclude that Ms Morgan was not
suffering from a mental impairment and therefore was not a disabled person
within the meaning of Section 1 of the DDA
– The occasional use of terms such as ‘anxiety’, ‘stress’ and even
‘depression’ by doctors will not of itself amount to proof of a mental
impairment within the scope of the DDA – let alone proof that the complaint was
suffering from a mental impairment which had a long-term effect as defined in
Schedule 1 to the DDA;
– A mental impairment could be established in one of three ways. These were
that the mental illness met the conditions set out in the World Health
Organisation’s International Classification of Diseases (or a publication of
similar reputation and recognition); or "by other means of a medical
illness recognised by a respected body of medical opinion"; or "by
substantial and specific medical evidence of a mental impairment which neither
results from nor consist of a mental illness" (a learning difficulty, for
example).
The EAT also gave some guidance as to how this could be proved. The main
points are:
Key points
– It is for a complainant to show that he or she is suffering from a mental
impairment within the meaning of Section 1 of the DDA
– Tribunals themselves have no more than a rudimentary knowledge of
psychiatric matters. Furthermore the tribunal should not form its own view of
the claim-ant’s condition from the way the complainant gives evidence, as the
tribunal has no training or expertise in such disorders;
– It is therefore necessary for the complainant to produce medical evidence
showing that he or she is suffering from a mental illness or from some other
mental impairment which is a clinically well recognised illness
– Complaints of stress, anxiety and depression without some medical analysis
and assessment will not be sufficient;
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– An employer should be given the opportunity to challenge such medical
evidence in advance of the tribunal hearing if the complainant’s medical
evidence is not accepted by the employer.
By Anthony Korn, Â a barrister at
199 Strand Chambers
