Kapadia v London Borough of Lambeth

Disability Discrimination - Meaning of Disability

EAT hold that a tribunal had erred in law in finding that there was no evidence that an employee's depression had a substantial adverse effect on his ability to carry out normal day to day activities. In reaching that conclusion, the tribunal had disregarded the uncontested evidence of the applicant's doctors. The tribunal had also failed to take into account the effects that the applicant's depression would have had were it not for the treatment he was receiving for it by way of counselling

Section 1(1) Disability Discrimination Act 1995 provides that a person has a disability `if he has 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. Paragraph 6(1) of Schedule 1 adds that an impairment which would be likely to have a substantial adverse effect, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.

In the case reported below, EAT consider a tribunal's approach to the question of whether an impairment has a substantial adverse effect where an employee is suffering from clinical depression.

Depressed accountant brings claim

K, a qualified accountant, commenced employment with the London Borough of Lambeth in its Directorate of Finance in April 1990. In April 1995 he consulted his general practitioner, Dr N, complaining of anxiety, stress, tension and depression. Dr N diagnosed reactive depression and referred K to a consultant clinical psychologist, R, who saw K about 20 times over the next two years. In early 1996 K applied for and obtained promotion to the post of senior accountant.

K soon began to complain that his duties in the new post were different from those that had been set out in the job description. He started to take increasing time off work for illness. In the year beginning 1 April 1996 he had 16 days certificated sickness absence and 20 days uncertificated sickness absence for a variety of illnesses ranging from flu to eye problems. None of these absences was stated to be on account of stress, although one of his absence monitoring forms made a reference to pressure of work causing him `stress and anxiety' and another referred to `headaches probably partly due to stress'. K also had 14 days off on account of appointments at the dentist and doctor.

On 9 April 1997 the employers referred K to their medical adviser, Dr G, who advised them that K was permanently unfit to undertake his duties and should be considered for ill health retirement. On June 30 K was retired on medical grounds with an immediate pension entitlement. K brought a tribunal claim under disability discrimination legislation against his former employers.

Tribunal find only trivial effects

The main issue before the tribunal was whether K had a disability within the meaning of S.1(1) DD Act. Although the tribunal accepted that the applicant's reactive depression was a mental impairment and that any adverse effect was long term, the majority found that there was no evidence that the impairment had anything more than a trivial effect upon his ability to carry out normal day to day activities. In other words, they thought that the adverse effect of the impairment was not `substantial'.

The tribunal pointed out that, at a time when K was having treatment for the depression, he had nevertheless considered himself fit enough to apply for a senior post which he knew would involve an increase in pressure of work. Although it was not disputed that towards the end of his employment K was finding his work stressful, there was no evidence that his ability to carry out that work or any other activities was affected. K did not provide any evidence from his wife, friends or colleagues, nor did he give any evidence of his day to day activities other than an oblique reference to irritability. The majority therefore concluded that K had not satisfied them that he was disabled within the meaning of the Act.

In his dissenting opinion, the tribunal chairman pointed out that K had been signed off sick by Dr N for a long time, an act that could not have been warranted by a condition that had only a trivial adverse effect on day to day activities. In the absence of any evidence from the employers to counter that of Dr N and R, the chairman was of the view that the applicant suffered from a mental impairment that had a substantial and long term effect upon his ability to carry out normal day to day activities.

In the light of the majorities decision on the question of disability, however, K's claim was dismissed. K appealed to the EAT.

EAT set out correct approach

EAT began by noting that the tribunal, in reaching their decision, had not had the benefit of the guidance set out in the subsequent decision in Goodwin v The Patent Office (Brief 627). In that case EAT had stated that tribunals should ask themselves whether the impairment has an adverse effect on the applicant's ability to carry out normal day to day activities in one of the respects set out in Sch 1 para 4(1) of the Act. In the instant case the relevant provision was para 4(1)(g), which directed the tribunal to consider the effect of the impairment on an applicant's `memory or ability to concentrate, learn or understand'. The tribunal should then consider whether the adverse effect is substantial, i.e `more than minor or trivial'.

EAT thought that the tribunal should also examine how an applicant's abilities have been affected whilst receiving treatment for the impairment and then consider the `deduced effects', i.e the effects which the tribunal think that there would have been but for the treatment. It was then necessary to consider whether the actual and deduced effects on the ability to carry out normal day to day activities are clearly more than trivial.

Tribunal ignored evidence

Returning to the instant case, EAT agreed with the applicant that the majority of the tribunal had been wrong to say that there was no evidence that his mental impairment had a substantial adverse effect on his day to day activities. EAT referred to the written reports of R and Dr N and to K's own witness statement, all of which were before the tribunal and were not contradicted by any evidence called by the employers.

R's report stated that the applicant's `symptoms of anxiety and depression constituted a mental impairment of sufficient duration and severity to have had a substantial and long term effect on his ability to carry out normal day to day activities. Dr N's report stated that K had considerable difficulty concentrating, that his sleeping pattern was affected and that he experienced `degrees of agoraphobia'. K's witness statement referred to loss of sleep, appetite and motivation and to the increasing difficulty he had in absorbing and organizing information and communicating with people.

EAT thought that, in the light of all this uncontested evidence from the applicant's doctor and clinical psychologist, it could not be said that there was no evidence of a substantial adverse effect on the applicant's ability to carry out day to day activities. This was not a case, said EAT, where a tribunal has decided, for whatever reason, not to accept uncontradicted medical evidence. The tribunal had simply disregarded the medical evidence. That, said EAT, was a wholly impermissible approach for the tribunal to take.

Deduced effects also overlooked

EAT added that the tribunal had also disregarded the deduced effects of the applicant's impairment. The evidence of the doctors called on behalf of the applicant was that, without the counselling sessions with R, there would have been a very strong likelihood of K suffering a total mental breakdown and needing psychiatric treatment. Again, no medical evidence was called by the employers to contest the evidence of the applicant's doctors on this point.

EAT gave short shrift to an argument of the employers that the counselling sessions, which were with a consultant clinical psychologist, did not constitute `treatment' within the meaning of Sch 1 para 6. EAT similarly dismissed the notion that the sessions did not constitute treatment because they were directed to the reduction of the applicant's symptoms rather than to the correction of the mental impairment. It could not be seriously argued that a series of counselling sessions which prevents the patient from needing drug treatment for his condition does not amount to treatment.

Applicant was disabled

EAT concluded, therefore, that the tribunal had fallen into error in reaching a conclusion based on the false premise that there was no evidence that the applicant's impairment had any adverse effect at all on his day to day activities, and in wholly disregarding the deduced 0401 effects of the impairment. EAT therefore made a declaration that the applicant was disabled within the meaning of the Act, and remitted the case to a fresh tribunal for determination on its merits.