Discrimination cases

What constitutes mental health discrimination? How can clinical depression be defined from everyday anxiety? These are just some of the issues that have been troubling the Employment Appeal Tribunal (EAT) in recent weeks.

A qualified barrister known as ’J’ launched a mental health discrimination claim against DLA Piper in September 2008 alleging that in June of that year the firm had withdrawn a job offer after learning that she suffered with clinical depression.

J had been offered a position in June 2008 pending the outcome of a health questionnaire. According to the claimant when she disclosed her medical history to the firm’s HR head the reaction was negative. She claims she was told that it was a high pressured position, which would not allow her to work from home, and that she ought to consider her position.

A few days later she was contacted by the firm and the offer withdrawn. It said that a recruitment freeze had been imposed because of the depth of the recession. It is the claimant’s contention that the offer was withdrawn because of her medical history – a move that was at odds with the Disability Discrimination Act 1995.

A three day hearing was called at the Employment Tribunal in February 2009. On day one of the hearing it was decided that the tribunal need only look at the time period when the claimant alleged discrimination by the defendant – that being May and June 2008.

On the second day evidence was presented to the court that included a medical report provided by the claimant’s GP and DLA’s psychiatric consultant Dr Gill.

On the third day the claim was dismissed in its entirety by employment judge Suigsworth.

The claimant had represented herself at the Tribunal despite being advised by Russell Jones & Walker (RJW) associate Kiran Daurka, who worked on a pro bono basis. After losing in the Tribunal RJW supported the claimant’s appeal and the Equality and Human Right’s Commission got involved, wanting legal clarity on the issues around mental health discrimination.

The case was heard by the EAT in February and the decision handed down on 15 June (16 June).

Rather than offering some acute clarity around how to define clinical depression – a definition that medical doctors agreed needed to be given by the court in this instance – the presiding judge Mr Justice Underhill threw the case back to the ET.

The tribunal had dismissed the views of the claimant’s GP stating: “We remind ourselves that Dr Morris is a GP and not a specialist in any sense in psychiatric matter.”

The appellate court rejected this: “Although her report is not as explicit as one would like, it is, as we have said, clear that Dr Morris intended to convey that the claimant was indeed suffering from clinical depression in May and June 2008.”

Furthermore, it stated, the medical report reflected on an earlier bought of depression suffered by the claimant in 2005, 2006 and in 2007. The decision to focus specifically on the time around the alleged discrimination and to dismiss the claimant’s past medical history was also a mistake, the EAT said.

The ET found that the claimant had failed to distinguish between “despondency, demotivation and anxiety” caused by a negative work appraisal and clinical negligence. Her upset, it said, was caused by the bad review and not by mental health issues.

The EAT, however, found that this conclusion was drawn from too narrow evidence. Other factors needed to be considered, it said.

After two hearings and two years of battling with the firm, the claimant now faces another tribunal. This will focus on coming up with a legal definition of clinical negligence while the discrimination aspects of the claim are yet to be discussed.

Yet this case is likely to define the basis on which all mental health cases will be brought in future. If lost by DLA it could potentially have a huge impact on the recruitment policies of many City firms.

The Lawyers:

Morgan Lewis & Bockius partner Matthew Howes and associate Sarah Battey instructed Daniel Tatton Brown of Littleton Chambers for DLA Piper.

RJW associate Kiran Dauka instructed Matrix Chambers’ James Laddie and Claire Darwin for the claimant.