An unquiet mind in the workplace: mental illness and the Disability Discrimination Act 1995

An unquiet mind in the workplace:’ mental illness and the Disability Discrimination Act 1995

Grace James Lecturer in Law, School of Law, University of Reading

New Labour’s recent ‘Welfare to Work’ policies encourage people with disabilities, where possible, to enter and participate in the workplace. The current policy of ‘inclusion’ is supported by the Disability Discrimination Act 1995 (DDA), which came into force in December 1996 providing those who are discriminated against on the grounds of their disability with an action against their employer. Drawing upon recently decided case law, this paper considers what the DDA offers those who are discriminated against because of a mental illness. I argue that policy-makers, courts and tribunals, because the relationship between physical and mental impairments is often misunderstood, fail to reflect the varied nature OJ; or understand the stigma associated with, mental ill health. The law is thus at present incapable of providing adequate protection for mentally impaired individuals who attempt to participate or remain in the labour market, and new approaches, which are sensitive to the diverse nature of disability, need to be considered.

1. INTRODUCTION

People with disabilities face a plethora of obstacles when seeking and keeping employment but those who are disabled because of a mental illness are particularly disadvantaged. They face specific difficulties, stigmas and taboos due to the fact that their disabilities have a psychiatric origin2 and, as this paper will show, the law is failing to address their needs. The term ‘mental illness’ is often associated with rare but frightening images of violent schizophrenics who are a potential danger to themselves and those around them, but in reality mental ill health can surface in a variety of ways,3 varies in degrees of seriousness amongst individuals, changes across time in particular individuals and is, for

1. Part of the title is taken from K R Jamieson An Unquiet Mind: A Memoir of Moods and Madness (London: Picador, 1995). 2. See J Reid and S Baker Not Just Sticks and Stones: A Survey of the Stigma, Taboos and Discrimination Experienced by People with Mental Health Problems (London: M I N D , 1996). 3. There are a huge variety of medically recognised mental illnesses and neurological disorders including, for example, depression, dementia, learning difficulties, alcoholism, drug abuse and epilepsy. See The World Health Organization’s International Classification of Mental and Behavioural Disorders 1994 or the American Diagnostic and Statistical Manual of Mental Disorder 1994.

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the most part, highly treatable.4 An estimated one in four of us will suffer mental illness or neurological disorder at some point in our life.5 Indeed, 121 million people worldwide are sufferers of depression, ranking it fourth in the leading ten causes of global disease, and it is predicted to rise to second place in the next 20 years.6 Yet, despite the prevalence and growth in the incidence of mental ill health it remains shrouded in secrecy and causes a great deal of distress and isolation for individuals within all aspects of our society. Such distress is particularly obvious in the labour market where sufferers face damaging, often unspoken, stereotypical assumptions hindering their ability to enter and participate in the workplace. Research suggests that people with disabilities are six times more likely to be turned down for a job than able-bodied applicants,’ and in a poll of 1,727 people 74 per cent thought that an employer would discriminate against those with a mental illness during recruitment and employment.*

The first piece of legislation to tackle the problem of disability discrimination in the labour market was the Disabled Persons (Employment) Act 1944. A post-war reaction to the number of disabled soldiers who were returning to the UK, it set up the disabled people’s register, designated certain low-status work exclusively for disabled people and imposed a quota scheme on employers with 20 or more employees, whose workforce then had to contain a minimum of three per cent of registered disabled people. It was an unmitigated failure, proving woefully ineffective and leading to only ten prosecutions in total.9 It was over 50 years later that the Disability Discrimination Act 1995 (DDA) was passed by the Conservative government following growing pressure from interest groups who were spurred on by the enactment of the Americans with Disabilities Act 1992 in the US.Io Abolishing the 1944 Act, this major piece of legislation came about following public hostility to the defeat of the Civil Rights (Disabled Persons) Bill, which had been introduced as a private members’ bill in 1994.” Hence the DDA was somewhat grudgingly enacted after a lengthy campaign12 and came into force on 2 December 1996.

4. World Health Report 2001: Mental Health: New Understanding, New Hope (Geneva: World Health Organization, 2001). 5. World Health Report, above n 4; and see M Rice ‘Breaking the Silence’, Observer Magazine, 21 October 2001, p 57. 6. World Health Report, above n 4. 7. P Graham, A Jordan and B Lamb An Equal Chance or No Chance (London: Spastic Society, 1990), cited in C Barnes, G Mercer and T Shakespeare Exploring Disability: A Sociological Introduction (Cambridge: Polity Press, 1999) p 113. 8. Department of Health ‘Mind Out for Mental Health’ Poll (2001), commissioned by the Department of Health in association with the Mental Health Foundation, MIND and the National Schizophrenic Fellowship - for details see www.mind.org.uk/press-room. 9. 565 HL Official Report (5th series) col 697, 27 June 1995, cited in C Palmer, G Moon and S Cox Discrimination at Work: The Law on Sex, Race and Disability Discrimination (London: Legal Action Group, 3rd edn, 1997) p 472. See also, B Doyle Disability, Discrimination and Equal Opportunities (London: Mansell, 1995) ch 5 . 10. For an interesting account of the creation, nature and development of the disabled people’s movement in the UK see J Campbell and M Oliver Disability Politics: Understanding Our Past, Changing Our Future (London: Routledge, 1996). 11. It was the fourteenth private members’ bill since 1982. 12. See further Barnes, Mercer and Shakespeare, above n 7, p 162.

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New Labour has since developed the legislation especially in relation to educationI3 and recent amendments, coming into force in October 2004 and implementing relevant European legislation, will further expand the scope of the Act.14 In addition, the Disability Rights Commission was established in April 2000 to help secure rights for people with disabilitie~.’~ These changes were partly the result of findings of the Disability Rights Task Force, which was set up in December 1997 to consider the effectiveness of the DDA.I6 A further consequence of the task force findings has been the government’s recently published draft Disability Discrimination Bill which aims to widen the scope of the DDA in terms of the definition of disability, transport services, renting premises and job advertisements, as well as introducing a new duty on public bodies to promote equality of opportunity.” In relation to mental illness, the government has initiated a campaign to raise awareness about mental ill health, which, according to Health Minister Jacqui Smith, ‘. . . is a clear sign of [their] determination to change people’s attitudes towards mental health’.I8

Overall, the government is promoting a general policy of inc1usi0n.l~ The DDA provides the potential for legal redress against employers who refuse to hire, or randomly dismiss, people with disabilities, and insists that workplaces be adjusted, where possible, to accommodate workers with disabilities. It is clearly an important part of the government’s overall aim to ‘eliminate the barriers which prevent disabled people from leading independent and fulfilling lives’ .*O However, this commendable commitment to tackling disability discrimination does have to be placed in the wider context of the government’s ‘welfare to work’ policy in general, and the ‘New Deal for Disabled People’ (NDDP) in particular,2’ through which individuals are ‘encouraged’ to move away from state dependency into employmentz2 with the help of schemes to motivate and provide training. Other policies have tightened access to disability

13. Special Educational Needs and Disability Act 2001, which makes it unlawful to discriminate against disabled people seeking access to education. 14. Directive 2000/78/EC, OJ 2000 L 303, enacted by the Disability Discrimination Act 1995 (Amendment) Regulations 2003, SI 2003/1673. This will abolish the current small employer exemption and include more occupations within the remit of the DDA and introduce the concept of direct discrimination into the legislation. 15. It has similar statutory duties as the Equal Opportunities Commission and the Commission for Racial Equality. For more detailed information about the functions and powers of the Disability Rights Commission visit the aebsite at www.drc.0rg.uk. There are plans, outlined in the Single Equality Bill 2002, for the three bodies to be consolidated. 16. Disability Rights Task Force From Exclusion to Inclusion: A Report offhe Disability Rights Task Force on Civil Rightsfor Disabled People (London: HMSO, 1999). 17. The Draft Disability Discrimination Bill (London: HMSO, 2003). 18. J Smith - speech at the launch of Department of Health research as part of its ‘Mind out for Mental Health’ Campaign in October 2001. See www.mind.org.uk/press-room. 19. See, for example, T Blair ‘New Policies for a New Country’, Independent, 21 September 1998. 20. The Draft Disability Discrimination Bill, above n 17, p 7. 21. See further, R Drake ‘Disabled people, New Labour, benefits and work’ (2000) 20 Critical Social Policy 42 I . 22. Statistics suggest that disabled people are three times more likely to be unemployed and stay unemployed for longer periods than able-bodied counterparts (see Barnes, Mercer and Shakespeare, above n 7, p 110).

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benefits,23 introduced anti-fraud l eg i~ la t ion ,~~ and set up compulsory interviews at job centres for claimants of working age. These wider government policies ensure that it is the individual with the disability who is the focus of the ‘new deal’ and, as such, suggests that the government is making the same ‘rationality mistake’ here as is evident in other policy areas.25 In the same way that Barlow and Duncan argue that the government is wrong to assume that a lone-parent’s decision not to work is based on ‘individualistic, cost-benefit type decisions about how to maximise their own personal gain’,’‘ the government is also wrong to assume that a large element of the disabled population is unemployed simply because they lack motivation or training. This policy implies that the disabled person is responsible for the fact that he or she is not employed and that this is a personal choice and one that he or she can, should and will overcome with a little gentle ’encouragement’ away from state dependency. Such a policy is both demeaning and detracts attention from the real and complex bamers to employment, which includes our devaluing people with disabilities,‘’ our assumptions that people with disabilities need to be ‘normalised’, our underestimation of the relationship between the socio- political and cultural forces which lie at the heart of our definition of disability, as well as fundamental problems in the structures and workings of the labour market.28 These issues are particularly acute for those living with a mental illness. None the less, they need to find and maintain suitable employment in the same way as those with physical impairments and this article assesses whether the DDA provides adequate protection for them when they attempt to do so.

In light of the government’s overall policy towards disability and employment, the provisions of the DDA become hugely important. The Act itself covers employees and contract workers who are employed personally to undertake work (self-employed), and apprentices. It applies to employers with 15 or more employees, although this small employers’ exemption will be abolished from October 2004 and a wider number of occupations are to be included within the It is thought that at present over 92 per cent of

23. Department of Social Security ‘Herman Announces Extra Safeguards for Disabled Benefit Claimants’, Press Release 98/027,9 February 1998. 24. The Fraud Act 1997. 25. The term ‘rationality mistake’ is used by Duncan and Barlow in relation to the underlying assumptions in the 1998 Green Paper Supporting Families: A Barlow and S Duncan ‘Supporting families? New Labour’s Communitarianism and the “Rationality Mistake”: Part 1 ’ (2000) 22 J Social Welfare and Fam L 23. See also A Barlow, S Duncan and G James ‘New Labour, the Rationality Mistake and Family Policy in Britain’ in A Carling, R Edwards and S Duncan (eds) Analysing Families: Morality and Rationality in Policy and Practice (London: Routledge, 2002) pp 110-128. 26. Barlow and Duncan, above n 25, a1 23. 27. Who are often perceived as ‘unfortunate, useless, different, oppressed and sick’: See P Hunt Stigma: The Experience ofDisability (London: Geoffrey Chapman, 1966) p 146, cited in Barnes, Mercer and Shakespeare, above n 7, p 77. 28. These include inaccessible buildings, poor work procedures, poor transport and a general over-emphasis on the type of skills that disabled people are less likely to have, and are, thus part of the wider barriers that hamper disabled people’s meaningful inclusion into mainstream society (see Barnes, Mercer and Shakespeare, above n 7, c h 5). 29. Disability Discrimination Act 1995 (Amendment) Regulations 2003, SI 200311 673 (the 2003 Regulations).

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employers are not included within the scope of the Act,’O but this is clearly set to change. In fact, when the scope of the DDA is extended in October 2004, it is estimated that over one million additional small employers and seven million jobs will come within the scope of the legislation.”

There are two main obligations under the DDA: First, employers must not treat a disabled person less favourably for a reason which relates to his or her disability than someone without that disability would be treated unless the employer can justify the less favourable treatment (s 5).32 This means that it must not discriminate against a disabled person whom it employs in terms of the employment which is afforded, in the opportunities which are provided for promotion, transfer, training or receiving other benefit, by refusing to give, or deliberately not giving, any such opportunity; or by dismissal, or subjecting him or her to any other detriment (s 4). Secondly, the employer must make reasonable adjustments to its premises and the ways in which it operates, in order to accommodate disabled employees and job applicants (s 6).33 These broad and general rights place particular responsibilities on employers, but are only applicable if the employee in question is a ‘disabled person’ within the meaning of the legislation; a basic requirement of identity that is not necessary under the Race Relations Act 1976 or the Sex Discrimination Act 1975. A disabled person is defined as someone having ‘a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day to day activities’ (s 1). In addition, the employer can justify the discriminatory treatment and/or argue that the adjustments required to accommodate the disabled person are not reasonable.”

There are therefore a number of hurdles for an applicant to overcome in establishing a claim under the DDA,35 yet if New Labour’s overall aim of including more disabled people in the labour market is to succeed it is crucial that, as a minimum requirement, the DDA protect every disabled person who attempts to enter the workplace, as well as those who become disabled when already in employment. This paper focuses on the effectiveness of the DDA to

30. See G Pitt Employment Law (London: Sweet & Maxwell, 2000) p 64. In addition, under the DDA employees of associated companies do not count towards the total (see Hardie v CD Northern Ltd [2000] IRLR 87). 31. Foreword to the Draft Disability Discrimination Bill, above n 17. 32. The 2003 Regulations, above n 29, do not repeal this section but will add a new definition of direct discrimination, which cannot be justified (s 3A(5)) and include a new definition of harassment (s 3B). 33. The obligation to make reasonable adjustments currently applies to arrangements and physical features of the workplace but the 2003 Regulations, above n 29, apply the obligation to ‘a provision, criterion or practice applied by or on behalf of an employee’ (s 4A). 34. But note that from October 2004 the ability to justify non-compliance with this duty will be removed, although employers will still be able to claim that the duty to make an adjustment is not reasonable (see below at p 530). 35. The provisions are expanded upon in Sch I to the Act, the Disability Discrimination (Meaning of Disability) Regulations 1996, SI 1996/1455 and Government Guidance on the definition - Department of Education and Employment and Social Security Guidance on matters to be taken into account in determining questions relating to the definition of disability (London: HMSO, 1996) and the Code of Practice for The elimination of discrimination in thefield of employment against disabledpersons orpersons who have had a disability (London: HMSO, 1996).


provide an adequate legal framework of protection for those suffering from a mental impairment, but highlights issues that relate to the general treatment of disability. Of course, in the event of poor treatment or dismissal an employee may also have a claim under his or her contract or, if he or she can show that his or her employer was responsible for the illness, may be able to claim damages for psychiatric harm, but such action is limited, especially since the Court of Appeal decision in Sutherland v H a t t ~ n , ~ ~ and the DDA should arguably provide a more favourable course of action. Unfortunately, as this paper will demonstrate, the DDA does not provide adequate protection because employers can too easily justify their acts and escape liability. Before considering this significant flaw in the DDA and how it manifests itself in relation to applicants with a mental impairment, I analyse the definition of a ‘disabled person’, which, as stated above, is a prerequisite for inclusion within the ambit of the protection available, and show how it is restrictive and ultimately incompatible with the government’s stated policy ambitions.

2. THE DEFINITION OF DISABILITY

Eighteen per cent of claims brought to employment tribunals are unsuccessful because the claimants fail to meet the definition contained in s 1 of the The definition raises particular problems for those suffering mental impairments: the DDA clearly meant to include mental abnormalities alongside physical abnormalities in its characterisation of ‘disability’, but the relevant legislation only offers a limited definition of ‘mental impairment’ as ‘an impairment resulting from or consisting of a mental illness’ which is ‘clinically well-rec~gnised’.~~ It is clear though that ‘the terms “physical and mental” are intended to be seen in their widest sense and should comprehensively cover all forms of impairment . . . r 3 9 and this, arguably, means that the definition should be interpreted in a broad way so as to ensure that the relationship between physical and mental disabilities is not oversimplified through a strict compartmentalisation of each. After all, the aim of the legislation is to protect those with impairments, not to force a hierarchical distinction between the two main ‘types’ of impairment. For similar reasons, it is also important that the evidential requirements in relation to proving whether a mental illness is ‘clinically well recognised’ are not over burdensome as it might prevent those with psychological complaints from clearing the first of the many definitional obstacles that must be overcome before they can establish the right to bring an action.40 Below, I consider the two main obstacles that a potential claimant might face, beginning with a consideration of the relevant case law in relation to the interpretation of ‘physical or mental’ impairments and then assessing

36. [2002] IlUR 263. For comment see B Barrett ‘Clarification of Employer’s Liability for Work-related Stress’ (2002) 31 IJL 285. 37. N Meager, B Doyle, C Evans et al Monitoring the Disability Discrimination Act (DDA) I995 (Nottingham: Department for Education and Employment Research Report RRll9, 1999). 38. DDA 1995, Sch 1 , para 1 . 39. HC Deb Standing Com E, col7 I . 40. The burden of proving that he or she is ‘disabled’ is, of course, on the applicant.

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the need for the impairments to have a ‘substantial and long term adverse effect on his ability to carry out normal day to day activities’. I suggest that whilst some steps have been taken to highlight the need for a purposive approach to the definition of disability, tribunals and courts are often overly cautious in their interpretation and application of the law at this initial stage, and this approach has particular implications for people with mental impairments.

(a) ‘Physical or mental impairments’

Some of the earlier EAT decisions relating to the definition of disability as a whole offered promising interpretations of the DDA and warned against an overly restrictive interpretation of the legislation. In Goodwin v The Patent Office4’ the EAT, overruling the tribunal decision, held that a paranoid schizophrenic who was dismissed because colleagues complained about his behaviour did satisfy the definition of disability. The case focused on the meaning of ‘substantial’ (see below) but, in its judgment, the EAT encouraged tribunals to adopt a purposive approach when deciding if an applicant is disabled. Similarly, in Vicary v British Telecommunications p l d 2 the general importance of context in using the government’s guidance documentation on the meaning of disability4’ was highlighted. Such guidance was not to be relied upon as an exhaustive list of the type of activities that would bring a person within the scope of the provisions. In Vicary the EAT overruled an earlier employment tribunal’s decision that a woman who was unable to prepare vegetables, cut meat, manually open jars or polish furniture (amongst other things) was not disabled within the meaning of the Act. It warned tribunals that ‘a relatively small proportion of the disabled community are what one might describe as visibly disabled, that is people in wheelchairs or carrying white sticks or other aids’, and advised that ‘they should not have in their minds a stereotypical image of a person in a wheelchair or moving with considerable difficulty’ because while ‘such persons may well have a physical impairment within the meaning of the Act . . . it of course does not follow that other persons who are not in such a condition are inherently less likely to have a physical or mental impairment of a sort that satisfies the legislation’.@ These early rulings advocated a broad and inclusive approach to whether a person satisfies the s 1 definition of disability. Such an approach is hugely important from the perspective of an applicant claiming to be mentally impaired because it refuses to focus on simplistic stereotypes of how a disabled person looks and behaves.

Unfortunately later decisions have not followed this initial common-sense approach to the meaning of disability. In the joined case of Rugamer v Sony Music Entertainment UK Ltd and McNicol v Balfour Beatty Rail Maintenance Ltd45 the EAT made a general distinction between a physical and a mental impairment. Both applicants claimed to be suffering with physical impairments (Mr Rugamer complained of an injury to his shoulder and Mr McNicol’s case

41. [ 19991 IRLR 4, EAT. See also Clark v IDG Ltd t/a Novacold [ 19991 IRLR 3 18, CA. 42. [ 19991 IRLR 680, EAT. 43. Above n 35. 44. [1999] IRLR 680 at [19], EAT. 45. [2001] IRLR 644, EAT.


was pleaded on the basis of an injury to his spine) but evidence was presented that questioned the very nature of their illnesses. They were found to be suffering from ‘psychological overlay’, which is described by the EAT as existing ‘where a person claims to be suffering from a physical injury, but the doctor is satisfied that his or her symptoms are not the manifestation of any organic physical pathology . . . the symptoms reported, however forcefully, are a manifestation only of that individual’s psychological state’.46 This condition is not well recognised in medical fields but where it is recognised it is clearly thought to have psychological rather than physical origins. The EAT, despite acknowledging that such a psychological impairment can cause physical pain and hence, by implication, in a practical sense is experienced as a physical disability, held that it is the origin of the impairment that should dictate how it is to be classified for the purpose of the DDA. The applicants were, it held, wrong to claim they had a physical impairment, and failed to show that, as a mental impairment, it was ‘clinically well-recognised’, so they were not eligible to bring an action against their employers. They failed at the first hurdle.

An appeal4’ was unsuccessful, further entrenching the distinction made here between an injury that is caused because of a physical impairment and one that is the result of a psychological condition. The distinction created in this case is awkward48 because it underestimates the relationship between physical and mental impairments and the evidential repercussions for applicants are potentially immense. Defining a disability by its origins rather than its effect on the person’s abilities segregates those with a disability that has psychological origins into the category of applicants who have a ‘mental impairment’ and hence, they have to overcome the additional evidential obstacle of proving that the illness is ‘clinically well-recognised’ . Whereas many claimants with mental impairments have no choice but to overcome this obstacle, it seems overly harsh to place even more potential claimants in this situation as this aspect is far from straightforward. Herein lies the crux of the problem: the availability and quality of medical evidence presented to the tribunal panel has proved crucial in establishing whether the impairment is ‘clinically well-recognised’. For example, in Morgan v Staffordshire Univer~ity“~ the applicant claimed to be mentally impaired, suffering from stress and anxiety as a direct result of an assault that had occurred at work, and presented evidence in the form of medical notes recording feelings of depression and showing a need for counselling. Yet the tribunal was unwilling to conclude that her condition fell within the World Health Organization International Classification of Diseases (ICD). The applicant, who was represented by a regional officer of her union at the original tribunal hearing and a relative at the EAT hearing, had only provided an index of the ICD and had not fully explained the specifics of where her illness was located in the document. The employment tribunal concluded that:

46. [2001] IRLR 644 at [ I ] , EAT. 47. [2001] IRLR 644, CA. 48. See G James ‘The Meaning of Disability: Physical and Mental Impairment’ (2002) 3 1 IJL 156; and M Rubenstein (editorial) in Industrial Relations Law Reports (2001) p 643. 49. [2002] IRLR 190, EAT.

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‘There was just no evidence or assistance from the applicant, or those representing her, to assist the Tribunal in reaching a conclusion that the applicant was suffering a mental illness which is recognised by a representative [sic] body of medical opinion.‘”

The EAT dismissed the appeal stating that the tribunal had not erred in its decision given the evidence laid before it by the applicant and her representative. In doing so it places the heavy burden of proving the illness to be ‘clinically well-recognised’ squarely on the shoulders of applicants, noting that ‘there is no good ground for expecting the tribunal to have anything more than a layman’s rudimentary familiarity with psychiatric classification’, and that ‘things therefore need to be spelled out’.51 While the EAT did not advocate that a full consultant psychiatric report is necessary in such cases it undoubtedly places enormous pressure on claimants to link their specific symptoms with the accepted body of medical opinion, even if the illness is relatively well known. In its decision the EAT outlined four routes to establishing ‘mental impairment’ :

‘(i) proof of a mental illness specifically mentioned as such in the World Health Organisation’s International Classification of Diseases;

(ii) proof of a mental illness specifically mentioned as such in a publication “such as” that classification, presumably therefore referring to some other classification of wide professional acceptance;

(iiii) proof by other means of a medical illness recognised by a respectable body of medical opinion; and

(iv) a fourth route, which exists as a matter of construction but may not exist in medical terms, derives from the use of the word “includes” in para 1 ( l ) , Schedule 1 to the Act. If as a matter of medical opinion and possibility, there may exist a state recognisable as mental impairment yet which neither results from nor consists of a mental illness.’52

The EAT went on to suggest that ‘the fourth category is likely to be rarely if ever invoked and could be expected to require substantial and very specific medical evidence to support its existence’ .53

That it chose to interpret the legislation in such a dogmatic way is arguably contrary to the more purposive approach evident and encouraged in the previous decisions of Goodwin and V i ~ a r y . ~ ~ Indeed, in the latter case, the EAT chastised the employment tribunal’s dealings with medical expert opinion as to whether an impairment came within the scope of the Act but in Morgan the

50. [2002] IRLR 190 at [15], EAT. 51. [2002] IRLR 190 at [20], EAT. Such an approach may well explain why half of all cases heard at tribunals during the first 18 months where the applicant claimed to be suffering from ‘depression or anxiety’ failed (see Meager, Doyle, Evans et al, above n 37, p 126). 52. [2002] IRLR 190 at [9], EAT. 53. [2002] IRLR 190 at [9], EAT. 54. It also, as Rubenstein comments, ‘overlooks the range of mental impairments relating to mental functioning, such as learning disabilities, which cannot be regarded as an illness’ (M Rubenstein (editorial) in Industrial Relations Law Reports (2002) p 167).


EAT distinguished its decision on the grounds that it concerned a different aspect of the definition: Vicary was mainly concerned with whether the illness had an adverse effect on the applicant’s ‘normal day-to-day activities’ whereas in Morgan, it argued, the tribunal was pondering the very meaning of a ‘mental impairment’ which was, it thought, ‘very much a matter for qualified and informed medical opinion.’55

The importance of medical evidence to show initial eligibility to claim under the DDA was emphasised again by the EAT, and then the Court of Appeal, in Woodrup v Southwark London Borough Council.56 Here the un-represented applicant claimed to be suffering generalised anxiety disorder, which she had suffered for five years and for which she was receiving treatment. She provided evidence as to the existence of the medical condition from a consultant psychiatrist, her GP and a psychotherapist. The latter wrote that ‘she has made good progress in psychotherapy’ but warned that ‘she is not yet recovered enough to leave the psychotherapy group and indeed were she to leave prematurely it could jeopardise the recovery she has so far achieved’.57 Yet counsel for the respondent successfully argued that there was no satisfactory medical evidence to show that the applicant would, without therapy, be mentally impaired, thus distinguishing this case from the earlier decisions of the EAT and the Court of Appeal in Kapadia v London Borough of Lambeth.58 In Kapadia strong medical evidence had convinced the EAT that the applicant would have had a mental breakdown without psychiatric treatment, but counsel in Woodrup argued that such evidence was lacking.

In Woodrup the EAT not only reiterated the need for medical evidence in order to establish the existence of a ‘clinically well-recognised’ condition but suggested that the evidence should show, where relevant, what would occur if the applicant was not receiving medical treatment (a ‘deduced effect’ case). Where medical evidence was lacking in such cases the EAT was of the view that the claim would be ‘plainly much less persuasive’ and it would be ‘perfectly likely that she will either not be believed or be found to have embellished or exaggerated the case’.s9 The Court of Appeal agreed with the EAT and noted that ‘in any deduced effects case of this sort, the claimant should be required to prove his or her alleged disability with some particularity.60 It seems as though the court was keen to prevent workers abusing the protection of the DDA but placing a further evidential onus of this nature on these applicants has negative practical implications especially as in England and Wales Legal Services Commission funding, commonly referred to as legal aid, is not available for tribunal representation and the costs of providing medical evidence may far outweigh the benefits of bringing an action. Figures available from the Employment Tribunal Service show that for the year 2002-03 the average (mean) compensation awarded in disability discrimination claims was &10,157 and the median award (which is often thought to be a better measure

55. [2002] IRLR 190 at [20], EAT. 56. [2002] Case 702/00, EAT, [2003] IRLR 1 1 1 , CA. 57. [2002] Case 702/00 at [8], EAT. 58. [2000] IRLR 14, CA. 59. [2002] Case 702/00 at [17], EAT. 60. [2003] IRLR 1 I 1 at [13], CA.

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as it represents the midpoint between the highest and lowest awards) was &5,573.6’ At an individual level this may well discourage applicants from pursuing a claim, especially given the nature of mental illness, around which there is often medical debate. There are undeniably grey areas when it comes to deciding whether a mental impairment is clinically well recognised6* and the tribunals naturally turn to the medical profession for help. This is inevitable given the unfortunate medical-model bias of the legislation, but the importance of medical evidence and the need to dissuade bogus claimants must surely be balanced with the overall aim of the Act (based as it is on a policy of encouraging those with disabilities into the labour market) and the purpose of the tribunal system, which is to offer a legal procedure that is ‘easily accessible, informal, speedy and inexpensive’.63

Moreover, whilst the relationship between mental and physical ill health has caused bitter arguments amongst scientists and academics, it is also widely accepted by many organisations that it is difficult and counterproductive to divide the two types of impairment in the way that some courts and tribunals have. The General-Director of the World Health Organization (WHO), in launching a report about mental illness, stated how ‘now more people than ever know that physical and mental health are inextricably linked to each other and to the well-being of individual^'.^^ It is also reflected in the personal narratives of those who are diagnosed with mental illness, as the following description of depression suggests:

‘When I am depressed, my whole body feels the depression, not just my mind. I feel like my legs and arms are made of lead. I drag my body around, struggling to climb stairs or go for a short walk. I weep unexpectedly, then my eyelids swell and my eyes turn red. I want to sleep endlessly and in sleeping too much, my brain feels foggy and my thinking gets sluggish . . . my entire body experiences my depression, making it less a mental phenomenon than a body phenomenon.’65

In addition, heavy reliance on medical professionals perpetuates views of disabled people as dependent ‘patients’ rather than citizens and workers with rights. This places disabled people into what is termed a ‘personal tragedy theory’ which ‘refers to an experience unique to each individual and always determined by their impairment’” and is, in turn, potentially damaging in terms

61. Employment Tribunal Service Annual Report and Accounts 2002-2003, available at www.ets.gov.uk/generalinfo.htm. 62. For example, scientists fail to agree whether ME is a physical illness or ‘a disease of the mind’: see J Burne ‘Battle Fatigue’, Guardian, 30 March 2002; and the discussion in O’Neif v Syrnrns & Co Ltd [ 19981 IRLR 233, EAT (where ME was classified as ‘clinically well-recognised’ ). 63. Donovan Report Trade Unions and Employers’ Associations: Report of a Royal Commission Cmnd 3623 (Chairman, Lord Donovan) (London: HMSO, 1968). 64. G H Brundtland, speech at the launch of the ‘World Health Report 2001’, above n 4, 4 October 2001, available online at www.who.ini/whr/200I/main/en/media/DG- speech.htm. 65. S Gabel ‘Depressed and disabled: some discursive problems with mental illness’ in M Corker and S French (eds) Disability Discourse (Buckingham: Open University Press, 1999) p 40. 66. Barnes, Mercer and Shakespeare, above n 7, p 67.


of how he or she is perceived and treated in law. Unfortunately, some tribunals and courts when confronted with such difficult issues revert to a literal interpretation of any relevant government guidance and a heavy reliance on medical evidence, both of which lead to an ad hoc, oversimplified and divisive compartmentalisation of illnesses. The decisions in Rugamer, Morgan and Woodrup are at odds with the purpose of the DDA which is to encourage the inclusion of people with disabilities in the labour market and to provide a legal remedy for those who are discriminated against as a result of their disability. The focus should, surely, be on the practical implications of the illness and its impact on the ability of the particular employee to do the particular job. As Rubenstein put it: if ‘a person walks with a limp. That is an impairment that affects their mobility. Whether they walk with a limp because of physical damage or because the limp is psychological is not an issue.’67

A better approach is evident in the EAT decision in College of Ripon & York S t John v Hobbs.68 Here, a medical expert found that the physical symptoms that the claimant suffered (which included twitching and muscle cramps) had no physical origin but felt unable to comment on whether the symptoms had a psychological cause. Despite the lack of a link between the medical evidence and the cause of the symptoms the EAT (and the tribunal before it) were happy to find the claimant to be ‘physically impaired’, stating that: ‘the Act contemplates that an impairment can be something that results from an illness as opposed to itself being the illness. It can thus be cause and effect.’69 Although it rests uneasily with Rugamer, this is a positive decision because it looks at the actual impairments (here the twitching and the muscle cramps but it could have been a limp, migraines, anxiety or a number of symptoms) that are likely to impede the person’s ability to work.

(b) ‘Substantial and long term adverse effect on normal day to day activities’

‘Substantial’ means more than minor or trivial and examples as to what are substantial are available in the guidance.’O As a general rule the effect of a person’s impairment has to be assessed without considering the medical treatment or any aids which he or she may be using to correct it, the exception being glasses or contact lenses.71 The time taken to carry out an activity is to be considered, as is the method by which a task is c~mpleted.’~ Progressive conditions are treated as having a substantial effect on day-to-day activities, even if not yet substantial, so long as they will become so (for example, HIV or muscular dystrophy). Interestingly, given the onus placed on medical evidence in relation to whether impairments are physical or mental and well recognised and impact on ‘day to day activities’, medical opinion is not thought to be as crucial in deciding whether impairments are ‘substantial’. This is quite clearly

67. Rubenstein, above n 48, p 643. 68. [2002] IRLR 185, EAT. 69. [2002] IRLR 185 at [32], EAT. 70. Government Guidance, above n 35. 71. DDA 1995, Sch 1, para 6. 72. Government Guidance, above n 35.

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considered to be a legal test. Following Vicary, the EAT in Abadeh v B T ~ I c , ~ ~ held that the employment tribunal had misdirected itself in its treatment of the medical evidence because it had been ‘over influenced by [the doctor’s] opinion as to whether or not the impairments were substantial under the Act and in effect adopted her assessment instead of making their own of that

Problems have, of course, been encountered when tribunals attempt to diagnose whether the mental impairment complained of has a ‘substantial’ effect on day-to-day activities. For example, the employment tribunal in Kapadia found that the applicant’s illness (depression) had only a trivial effect on his day-to-day activity despite medical experts suggesting that without counselling he might suffer a complete breakdown. This was fortunately overruled by the Court of Appeal7s but demonstrates the problematic nature of defining ‘substantial’ in any given situation, and the tactical importance of highlighting the negative aspects of the illness so as to ensure that the applicant meets the requirement of the definition. From the complainant’s point of view this is something that they themselves may find difficult to do, especially if seeking a remedy for dismissal or refusal to appoint.76 It surely goes against the grain to argue, on the one hand, that you are more than capable of doing the job for which you were not appointed or from which you were dismissed whilst, on the other hand, arguing that your illness has a ‘more than trivial’ (ie substantial) effect on your normal day-to-day activities. It is also a question of terminology as having to show an objective tribunal that day-to-day activities can be or are substantially affected may be particularly difficult for sufferers of mental illness. If an employee has a physical disability (for example, a shoulder injury or deafness), he or she can usually explain the symptoms in a way that matches the requirements of the DDA77 and the expectations of the judiciary. Indeed, physical impairments are easier to define and explain and they invite empathy and sympathy. For example, a person might complain of difficulty in mobility or a stabbing pain in the lower back. Mental impairments are not so well understood or openly discussed and do not attract such empathy, with sufferers often perceived as malingerers. Hence the terminology used by sufferers of mental impairments may be vague or the symptoms may be played down because of the nature, stigmas and taboos associated with it. This is apparent in the following dialogue, recorded by the respondent’s solicitor and duplicated in the EAT decision in Woodrup (discussed above), between the tribunal panel and the applicant. The tribunal is attempting to understand the extent of the applicant’s anxiety disorder on her normal day-to-day activities, but tries to impose its own terminology on the impairment, and this causes problems in communication:

73. [2001] IRLR 23, EAT. 74. [2001] IRLR 23 at [21], EAT. 75. [2000] IRLR 699, CA. 76. For many, the idea of labelling themselves as ‘disabled’ is problematic enough. See further, N Wilson ‘Well, I know this is going to sound very strange to you, but I don’t see myself as a disabled person’ (2002) 17 Disability and Society 509 and S Tierney ‘A reluctance to be defined “disabled’: How can the social model of disability enhance understanding of anorexia’ (2001) 16 Disability and Society 749. 77. See DDA 1995, Sch 1, para 6 and Government Guidance, above n 35, All-A14.


‘Tribunal: Appellant:

Tribunal: A ppe 1 la n t : Tribunal: Appellant: Tribunal:

Appellant: Tribunal: Appellant:

stomach upset - if didn’t take medicine? Has given me a reality path. Focus if not then I would slip out of reality. Puts me in a position where I can manage things. Are we talking about concentration? Yes, focus would drop. What would happen if you dropped? Would lose focus and reality. If did not have treatment then what would happen when you got out of bed? Couldn’t get out of bed. Had you had nervous breakdown? Not aware of terms, clinical term. I did collapse. Had severe depression was in bed for month needed to get help.’78

Goodwin offers some guidance as to how tribunals ought to approach the question of whether a condition has a ‘substantial’ effect, suggesting that the DDA is concerned with the effect the impairment in question has ‘on the person’s ability to carry out activities’ and that ‘the fact that the person can carry out such activities does not mean that his ability to carry them out has not been impaired’. This should preclude any simplistic notion of whether or not the claimant is in fact carrying out the job that he or she has been all~cated,’~ but it arguably does little to overcome the terminological barriers that may impinge upon the ability of sufferers of mental illnesses to label their impairments in a way that suits the needs of those who interpret the DDA.

The meaning of ‘normal day-to-day activities’ has also attracted judicial comment. Goodwin shed some light on the matter stating that it ‘is best left unspecified: easily recognised but defined with difficulty’.80 It does not have to be something that the applicant does or does not actually do. Following this definition the EAT, in Ekpe v Comr of Police for the Metropolis,” declared the tribunal decision that something could only be a normal day-to-day activity if more than 50 per cent of the population engaged in it, to be perverse.’* However, an aspect of the definition that could be particularly problematic for sufferers of mental illness is the fact that the impairment in question should have lasted 12 months or it should be ‘more probable than not’ that it will do

Effects need not be the same throughout that time (for example, original effects may go and new ones appear) but it could prevent, for example, serious but temporary bouts of depression from coming within the definition. A further related problem is that the DDA, unlike the US legislation, does not provide

78. [2002] Case 702/00 at [21], EAT. 79. It also reflects the general rule that i t is the effect of a person’s impairment without the medical treatment or any aids, which he or she may be using to correct it, is what has to be assessed at this initial definitional stage. See also Leonard v Southern Derbyshire Chamber of Commerce [2001] IRLR 19, EAT; Vicary v British Telecommunicationsplc [ 19991 IRLR 680, EAT and Law Hospital NHS Trust v Rush [2000] Case 842/99, EAT. 80. [ 19991 IRLR 4 at [36], EAT. 81. [2001] Case 1044/00, EAT. 82. Here the activity in question was placing rollers in hair, but see also the tribunal decision in Vicary v British Telecornmunicationsplc [ 19991 IRLR 680, EAT. 83. DDA 1996. Sch 1 .

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an action for discrimination because of perceived impairment^.^^ This underestimates the stigma attached to mental health conditions and the fact that this stigma can so easily become an act of discrimination. Indeed, mental ill health is often viewed as a risk, even when treatment is controlling the negative symptoms and the following anecdotal evidence from a job applicant suggests just how much of a taboo the issue can be:

‘On two occasions I lied when I applied for jobs. On both these occasions I said my two and a half years absence from employment was due to a term in prison. I was accepted for the first and short-listed for the second. Whenever I have been truthful about my psychiatric past, I have never been accepted for a job.’85

This is the type of problem that those suffering a physical disability do not have to overcome to the same degree, and it is a reason why tribunals when considering a person’s eligibility to bring a claim under the DDA must approach the issue with sensitivity. At present the definition of disability, as interpreted by the judiciary, does not reflect the social context within which mental impairments exist and fails adequately to protect a diverse and growing section of our society from workplace discrimination. Before discussing further the implications of this fundamental flaw in the DDA, let us consider the rights available to those with a mental impairment who do satisfy the s 1 definition of disability and are able to bring actions against their employers.

3. RIGHTS UNDER THE DDA

As stated above, under the DDA a people with disabilities should not be treated unfairly in relation to their terms of employment, employment opportunities or in relation to dismissal or ‘any other detriment’ (s 5). The legislation also places a positive duty on the employer to make ‘reasonable adjustments’ to accommodate for the job-related needs of a disabled employee (s 6). However, the fairly broad anti-discrimination provisions of the DDA are limited by the fact that an employer can escape any liability if it can show that the alleged act of discrimination was justified.86 The government plans to remove the justification stage in relation to ‘reasonable adjustment^',^' as the term ‘reasonable’ is thought to provide sufficient protection for employers, so, in anticipation of this change, the two methods (‘justification’ and ‘reasonableness’) of escaping liability are considered separately below. As with the definition of disability, this aspect of the DDA causes particular problems for those suffering a mental impairment.

84. S Deakin and G Morris Labour Law (London: Buttenvorths, 3rd edn, 2001) p 658. 85. Reid and Baker, above n 2. 86. Note also that an acceptable justification under one head of discrimination does not preclude a finding against the employer under the other; so if an employer is able to justify a s 5 discriminatory act it may still be liable for failing to make reasonable adjustments (s 6) (see Clark v TDG Ltd Z/U Novacold [ I9991 IRLR 3 18, CA). Note also that the 2003 Regulations, above n 29, will add the concept of direct discrimination to the DDA, which cannot be justified. 87. 2003 Regulations, above n 29.


(a) Justifications for discriminatory acts and failure to make ‘reasonable adjustments’

The justification has to be ‘both material to the circumstances of the particular case and substantial’ (s 5(3), (4)). Under the Code of Practiceg8 this is defined as meaning that ‘the reason has to relate to the individual circumstances in question and not just be trivial or minor’, and it states that ‘less favourable treatment is . . . justified if the disabled person cannot do the job concerned, and no adjustment which would enable the person to do that job (or another job) is pra~ticable’.~~ Although the Code of Practice provides some hypothetical examples,g0 it has largely been left up to the tribunals and courts to interpret the meaning of ‘material’ and ‘substantial’ and suggest what standard of proof is necessary. The leading authority on the matter is the Court of Appeal decision in Jones v Post Ofice:’ which involved a driver who was removed from driving duties when, having previously been diagnosed with non-insulin dependent diabetes, he suffered a heart attack and was prescribed insulin. He objected and was offered limited driving duties, which he refused. His employer obtained medical opinions, carried out a risk assessment and decided that the less favourable treatment was justified. After considering medical evidence presented by the claimant the employment tribunal found that the less favourable treatment was not justified. The central issue on appeal became whether the tribunal had the right to question the correctness of the employer’s risk assessment and judgment. The EAT allowed the appeal stating that the tribunal had been wrong to prefer the evidence of the applicant. The Court of Appeal agreed and Lord Justice Pill said that the tribunal ‘does not have the more general power to make its own appraisal of the medical evidence and conclude that the evidence from admittedly competent medical witnesses was incorrect or make its own risk asse~sment’.~’ Lady Justice Arden suggested that the term ‘material’ means that ‘there must be a reasonably strong connection between the employer’s reason and the circumstances of the individual case’.93 She also suggested that ‘substantial’ means ‘that the reason which the employer adopted as his ground for discrimination must carry real weight and thus be of ~ubs tance’ .~~ However, this latter interpretation was not followed by the other judges and appears to contradict the Code of Practice and ministerial statements, which define it as something less weighty.

As it stands, this decision makes it fairly easy for employers to escape liability. Even when applicants provide contradictory evidence in litigation, so long as the employers can show that they have gone through the motions of acquiring medical opinion and conducting a risk assessment, and can show that it was properly conducted, their conclusions seem watertight. This is surprising given the importance attached to the medical evidence required in relation to the definition of disability (see above), and suggests that a dramatically different standard of proof is required from the employee and the employer in relation

88. Above, n 35. 89. Above, n 35, para 4.9. 90. Above, n 35, para 4.6. 91. [2001] IRLR 67, CA. 92. [2001] IRLR 67 at [25], CA. 93. [2001] IRLR 67 at [37], CA. 94. [2001] IRLR 67 at [39], CA.

532 Legal Studies

to their particular hurdles. At this latter stage in the proceedings, the task of the tribunal is, according to Lord Justice Pill, ‘not very different from the task which they have to perform in cases of unfair di~missal’ ,~’ which means respecting the opinion of the employer so long as the reasons are material and substantial. This conclusion is especially worrying for those who have a mental impairment as they may find it more difficult to override prejudicial stereotypes when not able to have their employer’s medical evidence as to the scope and nature of their particular disability heavily scrutinised at this point in the proceedings.

Claimants have also faced another uncertainty relating to the standard of justification required: that of knowledge. The EAT in O’Neill v Symm &Co LtiP held knowledge of the disability to be necessary for an initial finding of discrimination but, fortunately, in Heinz v Kenrick9’ the EAT reached a different conclusion. In this case, which involved a claim from a sufferer of ME (or Chronic Fatigue Syndrome) who was dismissed after a long period of absence, Lindsay J stated that an objective causal link between the disability and the poor treatment was all that the Act required?* arguing that the alternative would lead to ‘hair splitting medical evidence’ .99 This was a positive decision because it placed the onus on the employer to ‘pause and consider whether the reason for some dismissal that they have in mind might relate to disability, and, if it might, to reflect on the Act and the Code before dismissing’.‘00 However, lack of knowledge was deemed to be highly ‘material’ as far as the justification defence is concerned. This means that where an employer argues that the disability was not something that it had given any consideration to at the time of the act of discrimination, he or she may escape liability. This again has particular implications for those suffering mental impairments as their disabilities are often less visible and/or deliberately hidden from employers because of the stigmas attached to them.

Whilst lack of knowledge does not fully exonerate the employer,lO’ it seems to shift the burden of proof slightly as, in practice, it requires more evidence from the applicant. Indeed, the Court of Session in Quinn v Schwarzkopfo2

95. [2001] IRLR 67 at [28], CA. 96. [ 19981 IRLR 233, EAT. O’NeilZ drew on the case law applicable in pregnancy-related dismissals where lack of knowledge of the pregnancy can defeat a claim (for example, Del Monte Foods Lfd v Munro [ 19801 IRLR 224, EAT), but a different line has been taken in the later cases - see London Borough of Hammersmith and Fulham v Farnsworth [2000] IRLR 691, EAT; Heinz 1’ Kenrick [2000] IRLR 144, EAT; and Quinn v Schwarzkopf [2002] IRLR 602, Ct of Sess. W. [2000] IRLR 144, EAT. 98. [2000] IRLR 144 at [26], EAT. See also Clark v IDG Ltd t/a Novacold [ 19991 IRLR 318, CA; London Borough of Hammersmith and Fulham v Farnsworth [2000] IRLR 691, EAT; and Quinn v Schwarzkopf [2001] IRLR 67, EAT. 99. [2000] IRLR 144 at [22], EAT. 100. [2000] IRLR 144 at [27], EAT. See also London Borough of Hammersmith and Fulham v Farnsworth [2000] IRLR 691, EAT where it was held that both respondents knew or ‘should have known upon making proper enquiries’ of the disability (at [22]). 101. Although see the judgment of Lord Johnson in the EAT decision in Quinn v S c h w a h p f [2001] IRLR 67, EAT. Lord Johnston cast doubt on the implications of knowledge at this point stating that ‘the legislation contemplates attempts by employers on a hypothetical basis tojusm an act subsequently held to be discriminatory wiuch they did not at the time consider to be such, because they were unaware of the existence of the disability’ (at [12]). 102. [2002] IRLR 602, Ct of Sess.


held that the original tribunal had been right to make an objective decision as to whether the employers in that case were justified (despite their claiming lack of knowledge) in dismissing an employee after a long period of absence due to illness. The court decided that the EAT had misdirected itself in holding that the issue of justification could not even arise because the employers lacked knowledge at the relevant time. The court stated that ‘the tribunal properly considered the material which was before it and reached a conclusion, on the evidence, that the job could not reasonably have been adjusted’,lo3 rejecting the argument that such an approach was unsatisfactory because it placed a heavier evidential burden on applicants to show how and where a reasonable adjustment could have been made.

The variety of levels of importance placed on knowledge at the two stages of the litigation (an initial finding of discrimination and, then, the ‘justification’) injects a degree of uncertainty into the proceedings. An employer does not have to be aware of the disability to have prima facie discriminated against an employee on the grounds of disability, but, according to Quinn, and Heinz before it, knowledge is material where it is attempting to justify the discrimination or lack of action. The problem, of course, is that many people do not, for a variety of reasons, reveal their disabilities and, in fact, many do not view themselves as, or want to be viewed as, ‘disabled’.’w In addition, most disabled employees do not want to appear troublesome by talking to their employers about their di~abi1ities.I~~ These issues are even more acute for those suffering from mental impairments as they often hide the realities of their situations from friends and family, let alone employers and colleagues. As one employee put it: ‘it’s all about fear and ignorance. When you tell people you have a mental health problem, they see the problem and stop seeing the person.’IM That this is the case is demonstrated in the facts of London Borough of Hammersmith and Fulham v Farnsworth.lo7 Here a job offer was withdrawn when the employer discovered that the applicant had a history of mental illness, for which she had, in the past, been hospitalised. The assumption of future absenteeism was not consistent with her recent employment history and her honesty went unrewarded because the stereotype, that mental impairments cause difficulties for employers, prompted the employers to withdraw the job offer. ‘OR

103. [2002] IRLR 602 at [lo], Ct of Sess. 104.See, for example, Wilson, above n 76; and Tierney, above n 76. 105. C Gooding ‘Disability Discrimination Act: From Statute to Practice’ (2000) 20 Critical Social Policy 540; and The Spastic Society An Equal Chance for Disabled People? (London: Spastics Society, 1986). 106.Rice, above n 5 , p 57. 107. [2000] IRLR 69 1. 108. Yet studies in Britain and the US suggest that disabled employees do not have higher absenteeism records or perform at a lower level (Barnes, Mercer and Shakespeare, above n 7 , p 113).

534 Legal Studies

(b) Duty to make ‘reasonable’ adjustments

The duty to make reasonable adjustments, which has been described as ‘the true cornerstone of the DDA’,Io9 by its very nature focuses on overcoming obstacles to including those with physical disabilities in the workplace. It applies to any ‘arrangements’”o that are made and to the ‘physical features’ occupied by the employer (s 6( 1)). It is discriminatory not to comply with the duty but the term ‘arrangements’ has been limited to job-related arrangements so, in Kenny v Hampshire Constabulary,“’ a job applicant with cerebral palsy was unable to establish a claim when a job offer was withdrawn because the s 6 duty was held not to apply in relation to providing personal assistance in going to the toilet. It does not necessarily include lowering the amount of work that is demanded of an employeell* or, it has been suggested, creating a special job.113 The Code of Practice states that ‘if a disabled person expects an employer to make a reasonable adjustment, he will have to provide the employer . . . with sufficient information to carry out that adju~tment’ .”~ That also applies to interviews where the onus is on the job applicant to spell out what adjustments are necessary,115 although this has to be balanced against the fact that ‘it would be unsatisfactory to expect a disabled person to have to go into a great long detailed explanation as to the effects that their disablement had on them merely to cause the employer to make adjustments which he probably should have made in the first place’.I16 It seems that the more extreme or peculiar the symptoms the more important it is to divulge and fully explain them to employers. This is awkward because it means that disabled individuals need to share the full ambit of their impairment so as to establish exactly what the practical repercussions of employment are, but, in doing so, they may threaten the likelihood of employment because of prejudicial stereotyping, and increase the ability of employers to claim that the adjustments required are not reasonable or that their non-compliance is justified. Once more the ramifications of this for those suffering a mental as opposed to a physical impairment are particularly problematic: Given this, the meaning of ‘reasonable’ is crucial to the functioning of this aspect of the DDA.

According to the EAT in Morse v Wiltshire County Council“’ the term ‘reasonable’ is to be judged objectively, so it provides scope for a tribunal to scrutinise any adjustments the employer has made or the fact that none were made at all. Indeed s 6 (4) provides a list of what a tribunal should take into account, which includes an assessment of the extent to which the proposed adjustment would prevent the effect in question, the practicality of making the necessary adjustment, the financial implications and other costs or likely

109. ‘Interpreting the DDA’ (2001) 98 Equal Opportunities Review 17. 110. Note that the 2003 Regulations, above n 29, change this to ‘a provision, criterion or practice applied by or on behalf of an employee’ (s 4A). 111. [ 19991 IRLR 76, EAT. 112.Mulligan v Comrfor Inland Revenue [ 19991 Case 691199, EAT. 113. Employment Tribunal decision in Tiquin v Abbey Nationalplc [ 19991 Case 24009471 98. 114.Above n 35. 115. Ridout v TC Group [ 19981 IRLR 628, EAT. 116. [ 19981 IRLR 628 at [25], EAT. 117. [1998] IRLR 352, EAT.


disruption and the availability of financial or other assistance. Thus, the term ‘reasonable’ requires a balance between the need for the adjustment to be made in order for the employee to work effectively’Is and the ability of this particular employer to provide it.

This process of balancing interests could prove useful to disabled people if applied in a purposive way but, in relation to mental impairments, there are wider problems with the duty to make reasonable adjustments. Whereas it is one of the more positive aspects of the legislation it is naturally more suited to accommodating phy~ica l”~ rather than mental impairments. There are three interrelated reasons for reaching this conclusion: First, the taboo surrounding the issue of mental illness is sufficiently strong to ensure that most employees are unwilling to rock the boat and will suffer in silence rather than raise the issue with employers.’20 Secondly, pressures of the workplace (which may include long hours, low staff morale or an increase in workload) often cause, perpetuate or/and intensify mental ill health so the relationship between the illness and the employment itself is far more complex than is the case with physical injury (even if the injury is industrial). This complexity cannot be properly addressed in a law that relies on individual claims, which can be evaded by employers who show that it is objectively reasonable, and fails to set minimum standards.lZ1 Thirdly, the fact that the term ‘adjustments’ is confined to ‘physical arrangements’ limits the ability of the law to help individuals with mental health problems. The emphasis on one-off physical changes to the working environment is politically convenient too as it is easier for employers to approach.lZZ Little attention is given to the removal of non-

118.This includes an examination of the extent to which the adjustment would actually help the individual overcome the medical symptoms (Fu v London Borough of Camden [2001] IRLR 186, EAT). 119. And even then, the more ‘common’ and ‘acceptable’ the physical illnesses are better protected than those that will require a special effort on the part of the employer, as was the case in Kenny v Hampshire Constabulary [ 19991 IRLR 76, EAT and Ridout v TC Group [ 19981 IRLR 628, EAT. 120.Rice, above n 5. 121. See C Gooding ‘Employment and Disabled People: Equal Rights or Positive Action’ in G Zarb (ed) Removing Disabling Barriers (London: Policy Studies Institute, 1995). Also, as stated earlier, civil actions for breach of duty of care in no way compensate for this flaw in the DDA. See Sutherlandv Hatton [2002] R L R 263 which held that employers can assume that the normal pressures of a job are within the employee’s capabilities unless the psychiatric illness is foreseeable (or the employer is aware that the employee has a history of psychiatric illness: see also Young v Post Ofice [2002] IRLR 660, CA), and there is no duty to foresee any illness that would not be obvious to the ‘reasonable employer’. See further, B Barrett ‘Clarification of Employer’s Liability for Work-related Stress’ (2002) 3 1 IJL 285. It is also interesting that, since the decision in Sutherland v Hatton, the TUC have encouraged members to complain about ‘bullying, overwork, inadequate training and unrealistic deadlines on record’ so that, if a stress-related illness occurs he or she has adequate evidence to bring an action (C Dyer ‘Judges Curb Stress Cases’, Guardian, 6 February 2002), but how realistic is this in practice? 122.The new definition under the 2003 Regulations, above n 29, does not remedy this flaw and it is interesting that the recent Draft Disability Discrimination Bill, above n 17, highlights the removal of physical barriers faced by disabled people, such as access to public transport, reflecting once again that current anti-discrimination legislation in this area is prima facie viewed as a battle against physical barriers.

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physical barriers such as the promotion of flexitime, lesser workloads (even if temporary) or the option to work at home one day a week, all of which may help sufferers of a stress-related illness continue in employment and prevent the illness from worsening. Interestingly, the right to request flexible working is now available to parents of children aged six or under,Iz3 yet this type of right is, unfortunately, not viewed as being within the realms of the DDA.

These difficulties reinforce the stereotype that disability is always physical and visible, leading to the assumption that all those who are visibly impaired are disabled and those who are not visibly impaired are not. A personal narrative of depression demonstrates once again the inappropriateness of this assumption:

‘I do not appear disabled yet I struggle daily as I live a disabled life. On the other hand, I have known individuals who appear significantly disabled to others who do not view themselves as disabled.’’24

The reasonable adjustment duty may be a move in the right direction but its operation reflects the inherent bias of the Act. It is wrong to assume that, in terms of disability, mental or physical, one model can suit all situations but, as is argued in the final section, if we are to ensure that all people are meaningfully included in the labour market, we must begin to identify, explore and include the realities of mental illnesses within the legislation as a whole.

4. CONCLUSIONS: THE WAY AHEAD

‘Mental illness is not a personal failure. If there is a failure, it is in the way we have responded to people with mental and neurological disorders. ’ 125

Mental illness is one of the final taboos facing employers in the twenty-first century and creates specific challenges for policy-makers and the judiciary. The law should protect employees who are refused employment, dismissed, made redundant or treated badly because of mental illness. Government rhetoric and ‘welfare to work’ policies suggest that it is eager for disabled people to become (and remain), wherever possible, active members of the workforce, and this, by implication, means that the labour market must be a place that is responsive and accountable to that general aim. At present the DDA is failing to provide an adequate means of redress where such discrimination occurs or there is a failure to make reasonable adjustments. It epitomises a general approach to disability that does not reflect the diverse problems surrounding, and various causes and symptoms of, mental impairments. In addition, whilst the DDA is undoubtedly a good broad basis for the promotion of the government’s policy of inclusion, it is compromised by an unwillingness, that permeates the very essence of the legislation, to place too much of a burden on

123. Employment Rights Act 1996, Pt 8, as amended; the Flexible Working (Procedural Requirements) Regulations 2002, SI 2002/3207; and the Flexible Working (Eligibility, Complaints and Remedies) Regulations 2003, SI 2003/3236. The right is available (since 6 April 2003) to parents of children aged under 6 or of disabled children under 18. 124.Gabe1, above n 65, p 38. 125. Brundtland, above n 64.


the employer. Indeed, the burden placed on an employer leans more towards accommodating people with disabilities that are nowadays ‘socially acceptable’’26 and these are, for the most part, as suggested above, people who display physical symptoms rather than people with psychological problems. The fact that the definition of disability creates evidential difficulties for individuals with mental impairments coupled with the permissibility of justifications where discrimination has occurred and the ‘physical’ nature of the duty to make reasonable adjustments means that many people are excluded from the protection of the legislation. This provides a superficial appearance of tackling all forms of disability discrimination but in reality it creates a new layer of marginalised individuals. Those with easily defined and easily managed disabilities are more tolerated in society and, by implication, they will become increasingly included in the workplace, but those whose disabilities are not so easily labelled and by their very nature present a challenge that goes beyond providing wheelchair access or other manageable one-off alterations to workplace systems or structures are excluded in a way that leaves them less empowered and more ‘othered’ than ever before. Put another way, if, as Oliver comments, ‘disability is something imposed on top of your impairments by the way we are unnecessarily isolated and excluded from full participation in society’,’*’ then the false dichotomy that is presented in the legal treatment of mental and physical impairments ensures that some people will be more ‘disabled’ than others.’28

Also, as stated above, in reality, how many sufferers are willing to ‘come out’ in relation to their illness, and categorise themselves in a way that will enable them to ‘fit’ into the slots created for them by the DDA? What happens, in terms of their inclusiodexclusion and self-identity, to those who are told that they either (a) do not come within the definition of disability or (b) fail to establish a claim despite being classed as ‘disabled’ and discriminated against because their employers have been able legally to justify their actions? What is this law saying to and about the place of these individuals within our society? Surely we have to provide opportunities within the workplace for all individuals to contribute, benefit and create, as Van Houten and Bellemakers have argued, a ‘varied society’ that regards all people as worthwhile and promotes ‘diversity as standard’.Iz9 The DDA is of, course, alone, limited in what it can do to help us achieve this aim, but it is designed to cover all disabilities and should therefore better reflect the hardships faced by those with hidden impairments. The European Directive, the 2003 Regulations which implement it’30 and the

126. Evidenced too in the fact that the Disability Discrimination (Meaning of Disability) Regulations 1996, above n 35, specifically exclude certain socially unacceptable illnesses from the remit of the DDA. 127. M Oliver Understanding Disability (London: Macmillan, 1996). 128. In relation to ‘othering’ and disability, B Hughes provides an interesting account of how Bauman’s ‘sociology of the stranger’ relates to disabilities in general (B Hughes ‘Bauman’s Strangers: impairment and the invalidation of disabled people in modem and post-modem cultures’ (2002) 17 Disability and Society 571). See also, P Abberley ‘Work, Utopia and Impairment’ in L Barton (ed) Disability and Society: Emerging Issues and Insights (London: Longman, 1996). 129. D Van Houten and C Bellemakers ‘Equal Citizenship for All. Disability Policies in the Netherlands: Empowerment of Marginals’ (2002) 17 Disability and Society 17 1 . 130.2000/43/EC, OJ 2000 L 303/16 and see above n 29.

538 Legal Studies

recent Draft Disability Discrimination Bill,131 do nothing to promote the specific needs of those with mental disabilities, and the Single Equality Bill 2002,’32 which proposes that all acts of discrimination are dealt with by one Commission and in a single piece of legislation, cannot address the issues raised in this paper. In fact the latter will arguably bury the needs of those who have been discriminated against on the ground of mental impairments under wider discrimination law concerns for which there is more political motivation, such as equal pay and race discrimination.

So how can the situation be improved? It clearly needs to be tackled on all fronts and Drake’s idea of a ‘social inclusion audit’ is a good place to start.’33 His idea is driven by a belief that the government’s ‘continued focus on individual deficits or “incapacities” must be matched by more rigorous monitoring of the attitudes and practices of the private sector in the employment of disabled people’ This would allow us to explore whether the current policy of inclusion is achieving its aims, but crucially it could reveal, if properly implemented, where and under what terms and conditions people with disabilities are being employed, and whether there is a difference in the location (between and within industries) of physically and mentally disabled employees. This is the best way to locate areas where stereotypes persist and highlight the real barriers for individuals. The present focus on changing the behaviour of people with disabilities is misplaced and cannot be effective unless we simultaneously assess where, how and why employers continue to dwriminate against those with a mental impairment. This principally requires an examination of employers’ practice, but it is important that people who live with the various types of impairments (physical and mental) have an input and are able to define the margins of the audit. Otherwise disabilities will continue to be defined by able bodied people whereas we need to create spaces where the ‘disabled individual herself becomes the active creator of meaning and identity’. 135

In addition, efforts to educate employers about the diversity and consequences (negative and positive) of mental ill health are also important and schemes like the ‘Mind out for Mental Health’ campaign’36 and Health and Safety Executive publication^'^' go some way to achieving this. Employers also need to be more aware of how workplace pressures can cause or add to stress-related illnesses and of their duties (under the DDA and their tortuous and contractual liabilities) to all their employees. The number of stress-related illness cases reported to the TUC increased twelve-fold between 2001 and 2002,’38 but, on a more positive note,

131.Above n 17. 132.A full copy of Single Equality Bill is available at www.odysseustrust.org, which gives effect to the main recommendations of the Cambridge Centre for Public Law’s Report, Equality: A New Framework, The Report of the Independent Review on the Enforcement of UK anti-discrimination legislation (London: Hart, 2000). 133. Drake, above n 21. 134. Drake, above n 21, at 422. 135. Gabel, above n 65, p 39. 136. Department of Health, above n 8. 137. Such as Health and Safety Executive ‘Tackling Work-Related Stress: A Manager’s Guide to Improving and Maintaining Employee Health and Well-Being’ (London: HSE, 2001) which notes that employers ought to evaluate stress when carrying out a risk assessment under the Management of Health and Safety at Work Regulations 1999, SI 199913242. 138. TUC ‘No rise for union legal cases but stress cases soar’, Press Release, 2 February 2002.


research has revealed that employers in the UK have an interest in learning more about what adjustments are helpful for individuals with mental health di~abi1ities.l~~ Indeed, managing disabilities in the workplace is a positive way of creating an inclusive atmosphere and avoiding costly and time-consuming litigation.

Finally and crucially, the legal framework that exists at present needs to be strengthened and applied in a purposive way so as to provide an adequate course of action where necessary. This means a reassessment of the definition of disability so as to prevent unhelpful distinctions based on the origins of the illness, an over- emphasis on medical evidence and restriction to long-term conditions. The justifications that provide employers with a way to avoid liability in the event of a discriminatory act have been re-considered in relation to direct discrimination on the grounds of disability and it will be interesting to see whether this helps claimants in general. Of all claims that went to a full tribunal hearing during the first 18 months of the DDA only 22 per cent were successful (and many of the claimants who were successful were legally represented).l@ This suggests a problem with the legislation and how it is being applied at tribunals in general but further research is needed to establish how tribunals specifically approach cases involving mental impairments.

These beginnings are important in order to provide workplace protection and employment rights for individuals who are currently impaired and for the one in four of us who will suffer a mental impairment at some point in the future. Overall, we need to provide a clear symbolic statement that there are basic rights for all people with disabilities wishing to enter the labour market and, at present, the DDA is failing to do so. As the ambit of anti-discrimination law widens to cover an increasing array of characteristic^^^^ it is important that we continue to assess the quality and effectiveness of the provisions already in place. The DDA is failing to protect a huge and growing population of people who live with mental illness and suffer discrimination on a daily basis, and this situation can only be improved if employers, policy-makers and the judiciary identify and adequately address the particular problems that these individuals face. Otherwise we risk creating a hierarchy of disability, promoted by legislation that fails to appreciate the nature and diversity of impairments, and how they relate to the labour market.

POSTSCRIPT

Please note that since completing this article the 2003 Regulations, referred to throughout, have come into effect (on 1 October 2004). In addition, changes to the DDA are explained in a new code of practice (Employment and Occupation Code of Practice 2004 - available at http://www.drc-gb.org).

139. S Bruyere ‘Managing Disability in the Workplace’ (2000) 92 Equal Opportunities Review 26. 140.Meager, Doyle, Evans et al, above n 37, p 207. 141. Including protection form discrimination on the basis of age, religion, nationality and sexual orientation (see Directive 2000/78/EC, OJ 2000 L 303/16 (Framework Directive)).

An unquiet mind in the workplace: mental illness and the Disability Discrimination Act 1995

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Transcript of An unquiet mind in the workplace: mental illness and the Disability Discrimination Act 1995