20 Aug 2020
The Employment Appeal Tribunal (EAT) has ruled that the tribunal did not err by finding a claimant had not demonstrated clear evidence that her ‘mixed personality’ disorder had a substantial adverse effect on her day-to-day activities.
Khorochilova v Euro Rep Ltd
A person is deemed to have a disability if they have an impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. This is defined under section 6 of the Equality Act 2010.
To pursue a claim of disability discrimination, the employee must establish they have an impairment that meets the definition of a disability under the Act. However, the onus is on claimants to convince tribunals they are disabled. This is often complicated when considering mental impairments.
One of the most significant cases to consider is J v DLA Piper LLP. This case determined that tribunals shouldn’t adopt a rigid, sequential approach to the questions that need to be asked of it. They should initially focus on the effect that the alleged impairment has on day-to-day activities.
The claimant in this case worked for a company which specialised in breeding insects. She was later dismissed from her role. Management informed her this was due to issues relating to her management of a cricket colony. She went on to bring a number of claims to the employment tribunal, including disability discrimination.
At the commencement of her claim, she submitted her ET1 form. In this, she didn’t specifically identify what disability she claimed to have. She simply claimed that she was ‘somewhat obsessive’ about her work.
Decision: employment tribunal
The tribunal held a preliminary hearing in order to determine if the claimant was disabled. This would determine whether her discrimination claim was likely to be successful. At this time, the claimant outlined that she had a ‘mixed personality’ disorder. She sought to rely on this in her claim. She provided a report from her psychologist that had been produced some years prior to back up this claim. The report seemed to have diagnosed this condition, alongside additional GP reports.
The tribunal ultimately ruled that she was not disabled for the purposes of the act. Firstly, they questioned if she had an impairment at all. This was because there was no reference to it in her GP report. Plus, she hadn’t actually been diagnosed with a recognised personality disorder. Despite this, they did also assess if her condition did have an adverse effect on her as outlined by the Act.
They concluded that she hadn’t provided any satisfactory evidence of this. She was not on any medication, and certain behaviours she exhibited were not sufficient proof.
Decision: Employment Appeal Tribunal
The claimant appealed to the EAT on numerous grounds. She argued that the tribunal had erred by not considering if her condition constituted a mental impairment. However, the EAT dismissed her appeal. They found the reasoning of the tribunal was correct and not perverse.
The EAT first analysed the statute. They outlined that the tribunal had first needed to identify an impairment. Then, they needed to determine if this impairment had a long-term, adverse effect on her day to day activities. From what the EAT could establish, they had done this. The tribunal had first considered the psychologist report and concluded that an impairment hadn’t been fully established. Despite this, they’d also considered the adverse effect element.
The EAT outlined that, in situations where there is a question that certain personality traits amount to a mental impairment, the real question is whether there is evidence of a substantial adverse effect.
The appropriate approach is to consider the question of impairment in light of the evidence of the adverse effect. This had been held in J v DLA Piper LLP. The tribunal had expressly considered this. They found that she was able to manage her condition without any form of medication or treatment. They had therefore been within their rights to conclude that on the balance of probabilities, an adverse effect was not present.
Claimants wishing to proceed with a claim of disability discrimination will need to establish that they have a disability. Tribunals will approach this question by considering the evidence provided. if the claimant can demonstrate a disability, it won’t matter if the organisation wasn’t satisfied that the impairment wasn’t present previously.
To this end, organisations should always take into account situations where claimants are struggling in their role. Particularly if it may indicate that they have a disability. Personality disorders in particular can be a complicated area. Employees should always feel comfortable coming forward if they do have a problem. If employees are starting to act in certain ways at work that seem out of character, consider providing further support.
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