Employment Law – Disability Discrimination – Meaning of Disability Discrimination Act 1995


Issues relating to discrimination against an employee on the grounds that she suffered from mental illness were recently considered in the case of McDougall v Richmond Adult Community College [2007]. According to paragraph 2 of Schedule 1 to the Disability Discrimination Act 1995 (“the Act”):

“(1) The effect of an impairment is a long-term effect if...

(a) it has lasted at least 12 months...

(b) the period for which it lasts is likely to be at least 12 months; or...

(c) it is likely to last for the rest of the life of the person affected...

(2) Where an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur”.

Between the 1st of November 2001 and the 25th of February 2002, the claimant in this case had been admitted to hospital for treatment under s.3 of the Mental Health Act 1983. She was subsequently discharged. She became the responsibility of a consultant psychiatrist. 

Then, in 2005, the claimant applied for a position as a database assistant with the employer college. In April of that year she was offered the position, which she duly accepted. Her employment in the position was however subject to satisfactory medical clearance and references.

On the 22nd of April, the employer, having received her medical report, withdrew the offer on the grounds that the required medical clearances had not been obtained. Subsequently, in August 2005 the claimant suffered a relapse. This led to her being sectioned again on the 23rd of December.

The claimant brought proceedings before the employment tribunal. She alleged that the employer had unlawfully discriminated against her on the grounds of her disability, which was contrary to the Act.

The issue to be decided by the tribunal was whether the claimant should be deemed a disabled person for the purposes of s.1 of the Act. More specifically, the tribunal had to come to a decision on whether the claimant's condition was “likely to recur”, as stated in paragraph 2(2) of Schedule 1 to the Act.

The employment tribunal came to the decision that at the date the allegedly discriminatory act was committed there was no likelihood of her condition recurring. Therefore the tribunal decided that she was not disabled.

The claimant appealed against that decision to the Employment Appeals Tribunal (“EAT”).

The EAT decided to reverse that ruling. This was done on the basis that the employment tribunal had not taken into account the relapse of the claimant's condition in August 2005 and her subsequent re-admission into hospital in December 2005 when it was considering the likelihood of recurrence at the relevant time.

The EAT's was of the opinion that the employment tribunal ought to have had regard to the following:

§   The evidence as at the relevant time; and

§   Subsequent events that had occurred by the time of the hearing.

The EAT made the following statement:

“…What is being assessed is the mental impairment as at the date of the statutory tort seen in the light of subsequent events... It is unattractive and possibly inoperable for them [employment tribunals] to be expected to ignore the reality of what has occurred so as to found a judgment on what might have occurred”.

The employer appealed against the EAT’s decision.

The issue arose as to the meaning of ‘…If that effect is likely to recur’ as stated in paragraph 2(2) of Schedule 1 to the Act. The appeal was allowed. It was held that the employers were not allowed to discriminate against employees who were disabled within the meaning of the Act.

On the second appeal, it had to be decided whether the employee was disabled within the meaning of the Act. This was done by applying a series of tests which included the test found in paragraph 2(2) of Schedule 1.

The decision was deemed to be:

§   A possible basis on which a claim for unlawful discrimination could be brought;

§   Inevitably taken on the basis of evidence as to the circumstances prevailing at the time of that decision; and

§   The basis for evidence on which the employment tribunal should make its judgment as to whether the employer had unlawfully discriminated against the employee.

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© RT COOPERS, 2008. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.


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