Factual and Procedural Background
The Plaintiff, a qualified barrister, worked for a government department from 2004 to 2006, during which she experienced an episode of depression resulting in approximately four months off work. In May 2006, she joined a large City law firm as a professional support lawyer, where she suffered a further episode of depression. In mid-2008, she was interviewed for a position with the Defendant, another large firm of solicitors, and was offered the job on 6 June 2008, conditional on completing a medical questionnaire.
Prior to completing the questionnaire, the Plaintiff disclosed her history of depression to a manager in the Defendant's HR department, who was reportedly unsympathetic and cautioned the Plaintiff about the high-pressure nature of the role, suggesting reconsideration of suitability and denying the possibility of working from home. Shortly thereafter, the Defendant withdrew the job offer citing a recruitment freeze due to the credit crunch. The Plaintiff contended that the withdrawal was motivated by her disclosed medical history.
On 9 September 2008, the Plaintiff initiated Employment Tribunal proceedings alleging disability discrimination contrary to the Disability Discrimination Act 1995 ("the 1995 Act"). The Tribunal hearing was held in February 2009 before Employment Judge Sigsworth and focused solely on whether the Plaintiff was disabled under the Act as of May/June 2008. The Tribunal concluded that the Plaintiff was not disabled and dismissed the claim. The Plaintiff appealed this decision.
The appeal was initially listed for June 2009 but adjourned due to case-management issues and was anonymised. At the appeal hearing, the Plaintiff was represented by Attorneys Laddie and Darwin, with funding support from the Equality and Human Rights Commission. The Defendant was represented by Attorney Tatton-Brown.
Legal Issues Presented
- Whether the Tribunal erred in law in its determination that the Plaintiff was not disabled within the meaning of the Disability Discrimination Act 1995 as of May/June 2008.
- Whether discrimination based on perceived disability—where the Defendant withdrew the job offer believing the Plaintiff to be disabled—is unlawful under EU law and should be recognised under the 1995 Act.
Arguments of the Parties
Appellant's Arguments
- The Tribunal incorrectly assessed the impairment issue by separating the question of impairment from the adverse effect on day-to-day activities, contrary to the effect of the repeal of Schedule 1, para. 1(1) of the 1995 Act.
- The Plaintiff argued that where there is a substantial adverse effect on normal day-to-day activities, the existence of an impairment should be inferred, making it unnecessary to establish impairment as a separate hurdle in most cases.
- The Plaintiff contended that the Tribunal failed to properly consider the evidence of her GP, Dr Morris, who opined that the Plaintiff was suffering from clinical depression in May and June 2008 with a substantial adverse effect on her ability to carry out day-to-day activities.
- The Plaintiff also advanced a "perceived disability" case, arguing that even if not disabled in fact, discrimination based on the Defendant's belief that she was disabled is unlawful under EU law and should be reflected in domestic law.
Respondent's Arguments
- The Defendant maintained that the Plaintiff was not disabled at the relevant time as her symptoms were more consistent with a reaction to adverse circumstances rather than clinical depression.
- The Defendant relied on expert reports, including one from a consultant psychiatrist who found the medical evidence equivocal and suggested the Plaintiff's difficulties were possibly the medicalisation of employment problems.
- The Defendant contended that the "perceived disability" argument was not pleaded, was not part of the original issues before the Tribunal, and raised complex questions better resolved by the European Court of Justice, thus should not be allowed at this stage.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| City of Edinburgh Council v Dickson (UKEATS/0038/09) |
Explanation of the relationship between subsections (1) and (5) of section 3A of the 1995 Act regarding discrimination definitions. |
Used to clarify the legal framework for disability discrimination claims under the Act. |
| London Borough of Lewisham v Malcolm [2008] IRLR 700 |
Impact on the practical effect of subsections (1) and (5) of section 3A of the 1995 Act. |
Referenced as diminishing differences between types of discrimination under the Act. |
| Goodwin v Patent Office [1999] ICR 302 |
Guidance on the four conditions for establishing disability under the 1995 Act: impairment, adverse effect, substantiality, and long-term effect. |
Adopted for structuring the Tribunal's analysis of disability. |
| Morgan v Staffordshire University [2002] ICR 475 |
Requirement for clear evidence of mental impairment beyond vague references to stress, anxiety, or depression. |
Considered in relation to the sufficiency of evidence of mental impairment. |
| Woodrup v London Borough of Southwark [2003] IRLR 111 |
Requirement for clear medical evidence in deduced effect cases. |
Applied in assessing the evidential sufficiency of the Plaintiff's case on deduced effect. |
| College of Ripon and York St. John v Hobbs [2002] IRLR 185 |
Approach to the impairment issue as a self-contained question under the 1995 Act. |
Discussed in relation to the separation of impairment and adverse effect questions. |
| McNicol v Balfour Beatty Rail Maintenance Ltd [2002] ICR 1498 |
Detailed discussion on the correct approach to impairment under the 1995 Act. |
Referenced in evaluating the Tribunal's approach to impairment. |
| Ministry of Defence v Hay [2008] ICR 1247 |
Endorsement of the systematic analysis of impairment and adverse effect questions. |
Supported the court's view on maintaining structured analysis despite repeal of certain statutory provisions. |
| Ghaidan v Godin-Mendoza [2004] 2 AC 557 |
Principle of interpreting statutes consistently with EU law. |
Referenced in relation to construing the 1995 Act to potentially cover perceived disability discrimination. |
| EBR Attridge LLP v Coleman [2010] ICR 242 |
Recognition of associative discrimination under EU law. |
Used by analogy to argue for the recognition of perceived disability discrimination. |
| Jones v Burdett Coutts School [1998] IRLR 521 |
Strict practice on raising new points of law in Employment Tribunals. |
Invoked to argue against allowing the perceived disability point at appeal. |
| Boyle v SCA Packaging Ltd [2009] ICR 1056 |
Interpretation of "likely" in Schedule 1 para. 6(1) of the 1995 Act. |
Applied analogously to the interpretation of "likely to recur" in Schedule 1 para. 2(2). |
| Coleman v Attridge Law [2008] ICR 1128 |
EU law principle prohibiting associative discrimination. |
Used to support the argument that discrimination on perceived disability grounds may fall within the scope of the Directive. |
Court's Reasoning and Analysis
The Court analysed the statutory framework of the Disability Discrimination Act 1995, focusing on the definition of disability, which requires an impairment that has a substantial and long-term adverse effect on normal day-to-day activities. The Court acknowledged the repeal of Schedule 1, para. 1(1), which previously required that mental impairments be clinically well-recognised, and considered the implications for the impairment question.
The Court accepted that tribunals may pragmatically start with assessing whether the claimant’s ability to carry out normal day-to-day activities is substantially adversely affected and infer impairment from that, but emphasised that the statutory distinction between impairment and adverse effect remains important and tribunals should generally address these elements separately.
The Court reviewed the factual evidence, including the Plaintiff's medical history, GP notes, expert psychiatric reports, and the Plaintiff’s own testimony. It found that the Plaintiff had suffered clinical depression and substantial adverse effects during 2005-2006, but that by early 2008 she had largely recovered. The critical period was April to June 2008, when the Plaintiff experienced symptoms of low mood and anxiety following a negative work appraisal.
The Tribunal had concluded these symptoms were a reaction to adverse circumstances rather than clinical depression, a distinction the Court accepted in principle but found that the Tribunal’s failure to consider the Plaintiff’s GP’s evidence (Dr Morris) was an error. The GP’s evidence supported the view that the Plaintiff was suffering clinical depression during the relevant period, which the Tribunal overlooked or improperly discounted.
The Court found that the Tribunal’s conclusion that the Plaintiff was not disabled was perverse, particularly given the established impairment and substantial adverse effect during 2005-2006 and the possibility of recurrence under Schedule 1 para. 2(2). It also found fault with the Tribunal’s treatment of the deduced effect argument, noting that the Tribunal wrongly discounted the GP’s evidence on the basis that she was not a psychiatric specialist.
Regarding the perceived disability argument, the Court acknowledged its potential importance under EU law but noted it was not pleaded or argued before the Tribunal, raising procedural difficulties. The Court also noted that the legal basis for extending protection to perceived disability cases is not straightforward and may require a reference to the European Court of Justice. Given these complexities and the possibility that the perceived disability issue may become irrelevant if the Plaintiff is found disabled on remittal, the Court declined to consider the point further at this stage.
The Court therefore allowed the appeal, remitting the disability issue to a fresh Employment Tribunal for reconsideration, suggesting that the new Tribunal should be provided with clearer evidence and consider the issue afresh, including whether to hear the disability issue as a preliminary matter.
Holding and Implications
The Court ALLOWED THE APPEAL and remitted the disability issue to a new Employment Tribunal for reconsideration.
The direct effect is that the Plaintiff's claim was not finally dismissed, and the question of whether she was disabled at the relevant time remains open for determination by a fresh Tribunal. The Court emphasized that the fresh Tribunal should consider all relevant evidence, including the possibility of recurrence and deduced effect, and suggested that the disability issue might be heard as a preliminary issue in any further proceedings.
The Court declined to decide on the perceived disability discrimination argument at this stage, leaving open the possibility for the Plaintiff to seek to amend pleadings and raise that issue before the Employment Tribunal. No new precedent was established on this point, and the Court underscored the strict procedural rules governing the introduction of new legal arguments on appeal.