Case law: definition of 'disability' for discrimination purposes

Employers must take care to identify potential disability discrimination claims, even where it appears that the employee is not disabled, following a recent ruling.

In this case, a job applicant applied for and was offered a job, subject to completion of a medical questionnaire. Before completing the questionnaire, she spoke to an HR manager at the company and told the manager that she had a history of depression. A few days later, the claimant was contacted by the company and told that a recruitment freeze had been imposed and the offer to her was withdrawn. She then started proceedings in an employment tribunal for disability discrimination.

At a preliminary hearing the employment tribunal ruled that, at the material time, she was not suffering from 'clinical depression' amounting to a disability within the meaning of the Disability Discrimination Act 1995 and there was therefore no disability discrimination.

She appealed. The Employment Appeal Tribunal (EAT) determined that the tribunal had been wrong to rule that the claimant was not disabled, and sent the issue back to be considered by another tribunal.

The EAT gave some useful guidance on issues arising in such cases, including its view that a GP is fully qualified to express an opinion on whether a patient is suffering from depression; while a GP's evidence may have less weight than that of a specialist, their evidence cannot be ignored if the evidence of a specialist is not available or is inconclusive. The EAT also discussed the related issues of 'symptoms of low mood and despondency' and 'clinical depression'.

Recommendation
Employers should ensure that it takes into account any evidence of possible disability in an employee or applicant for a job, even where there is uncertainty whether there is an actual disability.

Case ref: J v DLA Piper UK LLP, UKEAT/2010/0263_09_1506