Disability discrimination and stress

Since 1 October 2010, the law prohibiting unlawful discrimination against disabled people is contained in the Equality Act 2010 (EA 2010). EA 2010 is largely a “consolidating” Act which collected together the previous separate laws on discrimination creating one single piece of legislation. However, in relation to disability, and specifically mental health disability, the Act also introduced some helpful changes.

Under the EA 2010, a person has a disability where a physical or mental impairment has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. For a person to be disabled under previous disability legislation, the impairment needed to impact on one of a list of specified “day-to-day activities”. Specifically, to succeed in a claim based on a mental health disability, a claimant needed to show that the condition had an effect on his or her “memory or ability to concentrate, learn or understand”.

The EA 2010 abolished this list, theoretically making it easier for workers with mental health problems such as depression to be able to demonstrate that they are disabled for the purposes of equality law.

It is important to remember that tribunals always require persuasive medical evidence of disability, including mental health disability. GP letters or Fit-Notes indicating that a worker is suffering from “work-related stress” are very unlikely to be regarded as adequate for this purpose. “Stress” itself is not regarded by the tribunal as a mental health condition for the purposes of disability discrimination legislation.

In the case of J v DLA Piper (UKEAT/0263/09), the claimant’s offer of a job as a professional support lawyer for a large law firm was withdrawn after she revealed a history of depression. She brought a claim for disability discrimination, but the Employment Appeal Tribunal (EAT) concluded that her condition did not amount to a disability for these purposes.

In reaching its conclusion, the EAT offered some guidance as to when a mental health condition is likely to be regarded as a disability under equality law. While “clinical depression” will almost always be regarded as a disability, “reactive depression”, in the form of the “anxiety, stress and low mood” a person suffers as a reaction to adverse circumstances such as problems at work, is less likely to qualify as a disability, although each case will continue to be examined on its own individual facts, in particular the severity of the condition.

In practice, the requirement for a condition to be “long-term” will often limit the scope for adverse reactions to life events to amount to disability. An impairment has a “long-term” affect if it lasts for at least 12 months, or for the rest of the individual’s life. Recurring conditions may amount to a disability even if they appear to have gone away, provided they are likely to recur.

In the DLA Piper case, the tribunal helpfully confirmed that a patient’s GP is fully qualified to express an opinion as to whether or not that patient is suffering from depression. There is no requirement for a claimant to obtain specialist expert evidence of a mental health condition.

In practice, however, great care should be taken to make sure that the expert medical evidence, whether from a GP or specialist, is sufficiently clear and persuasive to provide the necessary guidance to the tribunal. This is one area where claimants frequently find themselves in difficulty.