Mental health conditions are a particular challenge in equality law because claimants often experience difficulty in proving that they are disabled.
There appears to be a resistance within tribunals and courts to making mental health conditions less onerous to prove under the Disability Discrimination Act 1995 (DDA), partly because of a fear of too many claims. Yet there is an important point being overlooked. Proving disability is just the first hurdle in bringing a DDA claim: a claimant still needs to go on to show that they suffered treatment based on their disability, at the hands of the respondent, to succeed in their claim.
J v DLA Piper was a case decided by the Employment Appeal Tribunal (EAT) last month that focused on some of these difficulties. J, a barrister, had a history of depression that had been managed by her GP. In June 2008 she applied for a position at DLA Piper. She was offered the job and accepted. J then disclosed her history of depression to HR. The job offer was withdrawn, which DLA Piper claimed was by reason of a recruitment freeze. J claimed it was because of her disclosure and contended that this was a discriminatory act.
The original tribunal did not consider the facts of the discrimination case because it held that J was not disabled, despite evidence of her depression from her GP and other medical advisers. A disability is defined under Section 1 of the DDA as “a physical or mental impairment that has a substantial and long-term adverse effect on [an individual’s] ability to carry out normal day-to-day activities”.
J could not, therefore, proceed with her claim under the DDA. The case was appealed and the EAT remitted it back to a fresh tribunal to decide whether J was disabled and protected under the DDA.
The facts of the case are straightforward, yet two years on J still has to prove that she should have protection under the DDA in order for a tribunal to hear the facts of her case and determine whether the job was withdrawn because of a recruitment freeze or because of her disclosure of depression.
While the burden is on all disabled claimants to show that they satisfy the DDA definition, this is often a particular difficulty in mental health cases as they are often ’hidden disabilities’. One key aspect of the DDA requires a claimant to prove an impairment, which is more easily accomplished with physical disabilities. The unpredictability of the tribunal’s approach to mental health conditions largely results from a lack of clarity within the law. The current position means it is difficult to determine when a mental health condition is an impairment and when it is not. The EAT had an opportunity to consider the DDA with a view to providing legal clarity on this very issue, but declined to do so.
Going forward, we ought to consider whether the law should make it easier to prove a mental health condition and how it should do so. Before the amendments
to the DDA in 2005, HIV charities campaigned to ensure that an individual with HIV was given protection under the DDA. The prognosis for those living with HIV has improved enormously over the past 10 years, but they have constant protection under the DDA because of HIV’s stigma. Is it now time for mental health conditions to be given similar protection?
It is imperative that we obtain legal certainty, particularly when mental health conditions affect an estimated one in four employees at some point during their working lives. Increased protection under the DDA will go some way to counter the stigma that remains and encourage more open discussion about mental health within our society.