Business aid: Dean Wilson LLP

Ian Wilson of local solicitors Dean Wilson LLP answers questions on Employment Law.
This week: Disability Discrimination

In my job working for a Local Authority I have suffered considerable stress. In an email to my line manager, I explained that I was suffering from lack of sleep and appetite, eye strain, and an inability to concentrate on simple tasks. The response was to refer me to an occupational health adviser who concluded that I was not suffering from clinical depression but recommended stress counselling. A few months later I was dismissed for taking time off without permission. Can I bring a claim for disability discrimination even though the occupational doctor said that I was not suffering from clinical depression?

For an employer to be liable for discrimination or for a failure to make reasonable adjustments, it is necessary the employer should have actual or constructive knowledge that the employee was disabled at the relevant time.

Constructive knowledge means that the employer did not know of the employee’s disability but could reasonably have been expected to know about it.

If the occupational doctor told the employer that I was not suffering from depression, is that not a complete defence to any such claim?

Not necessarily as it was decided in a recent Court of Appeal decision.

In essence, what the Court decided was that it was for the employer to make up its own mind on facts of which it is aware, rather than rely on an occupational health adviser. An employer faced with the symptoms which you described should have been expected to reach a decision as to whether or not you are disabled within the meaning of the Equality Act with or without the opinion of the occupational health adviser. The symptoms you have described point to the likelihood that you would be regarded as disabled for the purposes of a Tribunal claim. Useful guidance is set out in the statutory guidance issued in 2011 with the rather long title “Guidance on Matters to be Taken into Account in Determining Questions Relating to the Definition of Disability”. One of the pointers in determining whether somebody has a disability or not, is mental health conditions with symptoms such as anxiety, low mood, panic attacks and phobias. The “disability” in order to qualify as a disability for the purposes of a claim, has to have an adverse effect on day to day activities – and again this guidance gives examples of such behaviour and an inability to concentrate is one of the suggested adverse effects of the disability.

In reality a sensible employer will ask their occupational health expert to answer more specific questions than simply a generalised question such as “is the employee suffering from depression”.

Ian Wilson is senior partner of 13 partner Brighton solicitors
Dean Wilson LLP and specialises in employment law. He was a part-time chairman of the Employment Tribunals for nine years. He is also a board member of The Martlet’s Hospice.

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