Asdisability discrimination claims increase, tribunals will have to learn tograpple with the problems posed by conflicts between medical opinion and legalniceties, by Linda Goldman and Joan Lewis A growing volume of cases are coming to the tribunals under the DisabilityDiscrimination Act 1995 – the DDA – as people who are disabled gradually becomeaware of their rights and of the obligations of their employers to grant themequal opportunities in the workplace. Disability may be converted to capability where reasonable adjustments aremade to the workplace or system of work so as to enable people to carry out thefunctions of their jobs. Some disabilities are not overt and others may not bedeclared. Careful risk assessment and sensitive handling of ill-healthprocedures on behalf of employees may reduce employers’ exposure todiscrimination claims. Disability defined The DDA defines an individual as being disabled if they have a physical ormental impairment which has a substantial and long-term adverse effect on theirability to carry out normal day-to-day activities. “Long-term”applies not only to conditions that have lasted at least 12 months but alsothose that are likely to last for that long or are likely to recur afterperiods of remission. Empirical observations show that persons who are disabledwithin the meaning of the Act often do not see themselves in that light andonly do so when an exacerbation of an underlying condition occurs. There are anecdotal reports of clients with long medical histories who donot necessarily provide the relevant information on job application forms, andin particular tick the “No” box when asked to indicate if they have adisability. This thereby precludes employers from making reasonable adjustmentswhich could prevent flare-ups of the various conditions. Legal standpoint In establishing whether the applicant comes within the definition ofdisability, reliance is placed on the full range of definitions within the Actitself, supplemented by the HMSO Code of Practice and the guidance to the Act.The tribunals are increasingly helped by previous decisions of the courts.Often, employers do not take account of the full implications of”long-term” when dealing with people with health problems. While manydisabled people are healthy and able to fulfil their job descriptions, somepeople who go sick may acquire the legal status of disability, depending on thenature of their illness and the effect it has on them. Experts need to remember that the definition of disability is a legal one.Medical evidence is important but is only provided within the judicial systemto assist the courts. At one end of the spectrum of reliance on medical opinionis the case of Kapadia v London Borough of Lambeth, 2000, IRLR 699 where thetribunal ignored medical evidence of depression and came to the conclusion thatthe applicant was not disabled. This was eventually overturned by the Court ofAppeal. The other end of the spectrum is that of over-reliance on medicalopinion. In Abadeh v British Telecommunications plc, 2001, IRLR 23, thetribunal wrongly relied on an expert’s report that the applicant was notdisabled under the DDA. They should have considered for themselves whether theparticular impairment had a substantial effect. Employer’s knowledge of disability An employer who is taken by surprise on receiving a disabilitydiscrimination claim may not rely on lack of knowledge of the specificimpairment suffered by the employee. Although no decision has yet directlyreferred to the “hindsight approach”, it is arguable that liabilityfor discriminatory acts or omissions could arise where the employer knew orought to have known of a disability. In Heinz v Kenrick, 2000, IRLR 144, the employer dismissed the employeeafter almost a year’s absence. Chronic fatigue syndrome was not diagnosed atthe time of dismissal but symptoms were reported to the employer’s medicaladviser. The dismissal was discriminatory. Thus, it appears that therequirement prohibiting discrimination does not require the employee to informthe employer that he suffers from a particular condition. This means that anemployer could discriminate on the grounds of disability even where there is noformal report, certificate or statement by or from the employee that he isdisabled. It is difficult for an employer to make reasonable adjustments withoutactual knowledge of the need for those adjustments to be made. Occupationalhealth personnel, with their opportunity for involvement, can provide usefuland confidential input into adjustments without offering a specific reason. Recent developments The DDA recognises psychological illness has as much of an impact onday-to-day activities as physical impairment. However, two recent decisions were upheld that employees were not disabledunder the Act where physical symptoms were the result of psychological overlay.These cases will go to the Court of Appeal as part of a process that is leavingpractitioners on a legal cliff-hanger. Occupational health personnel may think that, if the applicants succeedultimately, it could be the start of a malingerers’ charter – provided that thealleged malingerers read the law reports. There are others who are of theopinion that, if the Act makes provision to protect those suffering from adescriptive impairment, causation, whether or not psychosomatic, is irrelevant.The World Health Organisation Classification of Disease defines impairmentas “any loss or abnormality of psychological, physiological or anatomicalstructure or function”. If that is the approach, the employee needs onlyto show as a matter of fact that they have an impairment of function, whethermental or physical. From then on, they are entitled to the protection of theAct. It could get quite busy for the occupational health department if thetribunals accept conditions exacerbated by psychological overlay as comingwithin the Act. Linda Goldman is a barrister at 7 New Square, Lincoln’s Inn. She is headof training and education for ACT Associates & Virtual Personnel. JoanLewis is a senior consultant and director of Advisory, Consulting &Training Associates and Virtual Personnel, employment law and advisory serviceconsultancies Case roundupEffect of psychological overlay on physical symptomsRugamer v Sony Music Entertainment UK and McNicol v Balfour Beatty RailMaintenance, 2001 IRLR 644 Both cases cover the same point about the dividing line betweenphysical and mental impairment, the former not being defined in the DDA.Disability is “a physical or mental impairment”. The mentalimpairment must result from or consist of “a clinically well-recognisedillness”. Both applicants claimed to be disabled under the DDA butpresented no medical evidence to support, nor did they claim to have, a mentalimpairment. The EAT said there is a “dividing line” between mentaland physical impairment which “has to depend … not on whether a physicalor mental function or activity is affected (a physical impairment may affectmental activities as well as physical ones, and vice versa) but rather onwhether the nature of the impairment itself is physical or mental”. Thetribunals’ decisions were upheld that “the functional or psychologicaloverlay, which appeared to be the only explanation for the restriction of theapplicants’ movements and activities was not a physical impairment within themeaning of definition of disability in the DDA”. The decision refers to the question of whether the DDAdefinition can be applied “to a state of affairs described medically asfunctional or psychological ‘overlay’: where a person claims to be sufferingfrom physical injury, but the doctor is satisfied that his or her symptoms arenot the manifestation of any organic pathology. In everyday language, accordingto the medical evidence the person concerned is making it up, even ifunconsciously…”.Watch this space. The implication that an impairment must bephysical or mental will be considered by the Court of Appeal.Dismissal of schizophrenicjustifiedA v London Borough of Hounslow, IDS Brief 694, 2001, EAT A applied for a job as a laboratory technician in a school andwas appointed subject to a satisfactory medical report. He refused to takemedication for schizophrenia, symptoms of which had previously includedfantasies of mass murder. The occupational health physician said that thechances of relapse were small but the consequences could be devastating if Ahad a relapse and acted out his fantasies. The employer was justified indismissing him as there were no reasonable adjustments it could have made toenable him to work in the school. The dismissal was fair because, withoutmedication, he posed a risk to other staff and pupils. He also failed to establish that the defence of justification wasincompatible with the Human Rights Act 1998 (HRA). The events of which hecomplained preceded the Act coming into force. Also, the refusal to offer ormaintain employment under the terms of the DDA was not a breach of Article 8 ofthe HRA, the right to respect for private life and family which”encompassed the right to earn a living and develop relationships atwork”.Evidence of how an employee carries out work relevant toassessment of ability to carry out normal day-to-day activitiesLaw Hospital NHS Trust v Rush, IDS Brief 693, 2001 R, a nurse, injured her back in 1984 and was assessed as havinga permanent 7 per cent disability. She suffered another injury in 1997 and wasoff work for two years until she was dismissed on the grounds of ill-health. The employment tribunal determined that R was disabled underthe DDA because, although she had performed her work duties for over 13 yearsbefore the second accident, her normal day-to-day activities were affected. Shewas unable to lift a kettle to the tap to fill it, had to sit to do ironingand, among numerous other items cited, could not walk more than 50 metres. TheCourt of Session (Scotland’s Court of Appeal) said that the tribunal correctlylooked at what the employee could not do, or could only do with difficulty,rather than on what she could do. There was no evidence to show that she wasable, without difficulty, to carry out acts at work which would appear to beprecluded at home, such as lifting moderately heavy weights. The tribunal foundR to be a credible witness as to her condition. The guidance confirms thatnormal day-to-day activities take their natural meaning and do not includework. Inconsistency between domestic and work abilities can be considered by atribunal in assessing the credibility. Previous Article Next Article Equal rights for allOn 1 Dec 2001 in Personnel Today Comments are closed. Related posts:No related photos.