Further memorandum from Mind (DDB 103)
In view of issues raised since our first submission
Mind is taking the opportunity to provide extra written evidence
to the Joint Scrutiny Committee on the definition of disability.
1. INTRODUCTION
1.1 Fears are expressed that the proposed
changes to the law will cause difficulties for employers and not
be publicly accepted. Of course it is only employers that discriminate
that need to fear the law. The DDA has not proved a bonanza for
disgruntled employees and indeed the extremely low success rate
of applicants might suggest rather the formidable difficulties
in their way. A recent book produced by the Legal Services[35]
Commission reports that people who did not act to solve their
legal problems were least likely to believe that something could
be done to solve their mental health (64%) or discrimination problems
(52%) (compared with 23% for personal injury for instance).
1.2 By clarifying the law the changes proposed
may be of assistance to employers. Improvement to the Guidance
will also assist in this regard.
1.3 Our proposals would expand the protection
for people with depression. That this is not likely to have a
major impact on employers was the view expressed to the Disability
Rights Task Force by government officials in papers put before
the Task Force[36].
Assisting the development of good practice for all people with
mental health problems who are in the workforce will be beneficial
for employees. Recent work on mental health by the Work Foundation
points also to the advantages for employers.
1.4 Furthermore the definition is only the
gateway into protection from discrimination. In the admittedly
difficult area of sickness leave (an issue which arises in many
other contexts than mental health) the employer has the opportunity
to justify his/ her actions to terminate an employment if there
are "material or substantial" reasons for it and if
an adjustment would not be "reasonable". Tribunals have
shown an ability to balance the legitimate needs or business interests
of employers with the rights of employees in deciding whether
a decision is justified.
2. THE EVIDENCE
FROM OTHER
JURISDICTIONS
2.1 In our examination of the definitions
of disability in the laws of about 20 countries and some international
or regional standards[37]
we have found no definition that, on its terms, is so disadvantageous
to people with mental health problems as is the case in the UK
law.
2.2 Broadly speaking there are three basic
approaches in the definitions of disability found in the laws
of different countries. In some countries access to disability
discrimination law is available to anyone who suffers discrimination
on the ground of disability, disability itself being very broadly
defined. In other countries there is a protected class of people
whom the law calls disabled and only those people can use the
discrimination legislation. In this group there are two approaches
to defining the protected class—one narrower than the other.
Both USA and UK have opted for the narrow approach, Australia,
New Zealand, Ireland, South Africa, Israel, and Sweden for the
wider one.
2.3 In the case of UK and USA the need to
prove the effect of impairment on daily activities is often the
first stage of a disability discrimination case. It can involve
significant time in the courts and considerable expense in lawyers'
and medical experts' fees. It has been widely criticized in UK
and abroad for creating an extra and complicated legal hurdle
to overcome when the key issue in discrimination law is whether
discrimination has taken place[38].
2.4 It is particularly in the case of USA
and UK that the definition can pose particular disadvantages for
people with mental health problems. In 1997, the Equal Employment
Opportunity Commission (EEOC) released a policy guidance concerning
application of the Americans with Disabilities Act to individuals
with psychiatric disabilities. The comprehensive document answers
some of the most common questions about psychiatric disabilities
and the ADA. The guidance explains major life activities particularly
relevant to psychiatric disability. These include thinking, interacting
with others, caring for oneself and sleeping. The Guidance was
aimed "to enable people with psychiatric disabilities to
get past the first hurdle under the ADA: whether the employee
has a covered disability".
2.5 However the ADA has never been as problematic
for people with mental health problems as the UK law because of
differences in the wording of the definition.
— The list of major life activities
is not exhaustive and can cover the functions that Mind considers
necessary for people with mental health problems.
— There is no requirement to show that
mental illness is "clinically well recognized".
— There is no 12 month qualifying period—substantial
covers both length of time and severity of the condition and according
to the Guidance could be as little as several months[39].
3. EVIDENCE FROM
CASE LAW
3.1 There is ample evidence in case law
of the problems faced by people with mental ill health. The Institute
of Employment Studies, in its latest Report (2002) has reported
that in only 15.3% of Employment Tribunal cases involving people
with mental health problems has the person been held disabled
whereas the norm for all other cases is much higher. Cases in
which by any commonsense approach the person was disabled have
failed[40]
at first instance but succeeded on appeal. Studies demonstrate
a high settlement or drop out rate in mental health cases, which
is hardly surprising. Recent cases show that it is not improving.
3.2 Clinically well recognized Illnesses
Several recent cases[41]
show the discriminatory effect of the clinically well recognized
requirement.
In the Balfour Beatty case the applicant suffered
from debilitating pain that had no physical diagnosis but the
Court of Appeal was prepared to accept that it could be a physical
disability without a clear physical cause—citing an earlier
case that the impairment may be the illness as well as the results
of an illness. Neither the Act nor the Guidance expressly require
that the primary task in ascertaining the presence or absence
of a physical impairment involves fine distinctions between an
underlying fault or defect of the body and its manifestations
or effects. It is possible to draw inferences from the symptoms
and effects of the symptoms as to the presence of an impairment.
A related formidable problem for applicants
to pursue a case is the difference of view among medical practitioners—presenting
the applicant with the need to call a raft of medical experts
merely in order to decide a correct diagnosis. Given the cost
(and that costs are generally not awarded in Tribunals) this can
be a major disincentive to bringing a case at all[42].
In Morgan v Staffordshire[43]
the problem posed by clinically well recognised was apparent.
The applicant who worked in the respondent's catering department
was assaulted by a supervisor at work; developed stress and anxiety;
and was offered alternative work, none of which would guarantee
that she would not again encounter the supervisor who had assaulted
her. She did not accept the offers of alternative work and resigned.
She claimed constructive dismissal. She did not call any medical
evidence, but her medical notes were available to the ET. The
ET concluded that she did not suffer from a medical illness which
is recognised by a respected body of medical opinion, and that
she did not therefore have a mental impairment within the meaning
of the Act. A loose description such as "anxiety", "stress"
or "depression" will not of itself suffice unless there
is credible and informed evidence that in the particular circumstances
so loose a description nonetheless identifies a clinically well-recognised
illness.
3.3 Normal day to day activities
The difficulties for people with depression
with normal day-to-day activities are demonstrated in numbers
of cases[44].
The waste of time for parties, lawyers and the courts is well
exemplified by the recent EAT case of Hancock v Essex
County Council. [45]
The applicant was an experienced teacher close
to retirement who was a school governor and an active County Councilor.
He developed clinical depression and was away from work for over
12 months. The Tribunal the EAT and the parties fully accepted
the medical report by his "very distinguished" consultant
psychiatrist detailing the depth of his clinical depression. He
had difficulty sleeping, communicating, had low motivation and
low mood was unable to attend work because of this, had high levels
of anxiety especially in contact with school children but had
adequate short-term concentration and was "cognitively intact".
The EAT went through many interpretive contortions to try and
decide whether a person who was clearly disabled could satisfy
the definition but they failed and eventually decided to refer
the case back to a fresh Tribunal for rehearing.
In McFarlane v Shell UK Ltd (EATS/0016/02)
in November 2002 the Employment Appeal Tribunal made the following
finding.
M had a depressive illness and, following dismissal,
brought a claim under the DDA. The ET held that he did have a
depressive illness and it did have an effect on normal day to
day activities; but the effect was not substantial, nor capable
of lasting for at least 12 months.
"As with cases of depression generally,
we accepted that the only circumstance in the list [that in Schedule
1] which was applicable was the effect on the applicant's memory
or ability to concentrate, learn or understand . . . the applicant's
evidence was that he was able to concentrate for only brief periods
when reading, he was forgetful about minor matters such as switching
off lights, items he was going out to buy, for which he now needed
a list, or doing up his trousers. More significant was his complaint
that he had to take a nap between Aberdeen and Forfar when driving
to and from work . . . The fact that the applicant decided to
pull in to take a nap when driving to and from work indicated
that he was aware of physical danger. We noted also the example
given in para C21 (perception of risk of personal danger) in relation
to crossing the road. To qualify as substantial, the lever of
underestimation of physical danger suggested is persistent inability
to cross a road safely. The evidence, such as it was, on that
point fell far short of that standard."
The ET considered the evidence both from the
doctor and from M that he had recovered to a large extent.
"The fact the applicant was still on anti-depressants
was as a precautionary measure to forestall the possibility of
relapse. He himself testified that he was experimentally varying
his dosage at the time to establish if he could reduce his intake
without it affecting him."
The EAT agreed on the issue of medication "that
it was not so much affecting the extent of the disability but
more therapeutic and protective". With regard to mobility,
it was held that "they plainly considered that the limited
consequences in relation to driving were not sufficient to amount
to a finding that such had a substantial effect on the way of
life of the appellant".[46]
4. DEPRESSION
AND THE
NEED FOR
SIX MONTHS
4.1 As stated in Mind's first submission
to the Committee most cases of depression last for six months
or less. There are surprising numbers of cases where this fact
has defeated the applicant[47]—(surprising
that the case was taken at all). The International Classification
of Diseases (ICD 10) from the World Health Organisation, the very
authority the law requires to be consulted to establish "a
clinically well recognised illness" states that the median
length of depression is six months; the other international authority
the American Diagnostic and Statistical Manual IV lists four months
as being typical for a major depressive episode.
4.2 Sometimes the effects can last for 12
months but not be substantial over the whole period. [48]
This could be due to the effects of medication which should be
discounted if it is a coping mechanism but can also be ignored,
as in the Shell v McFarlane as "therapeutic
and protective".
4.3 Could this be solved by relying on the
recurrent conditions provision?
Certainly the recurrent conditions provision
of the DDA could assist in some circumstances and they worked
effectively in a recent case, Greenwood v British Airways
plc. [49]
The applicant had suffered depression and been
on sick leave for a period of at least six months in 1993-94.
He was diagnosed as having a "chronic underlying medical
problem" which was capable of affecting his concentration.
In February 1997 he had a fortnight off for sick leave and was
prescribed counseling and medication. Three months later when
he was fully recovered but was turned down for promotion partially
on account of his sickness record. Soon after that he became depressed
and was away from work for several months. The Tribunal found
that he was not disabled person at the time he was not promoted.
On appeal the EAT found him to be disabled because of the recurrence
of his condition, which relieved him from showing a single period
of 12 months. The case was referred back to Tribunal on the issue
of justification. The EAT was clearly sympathetic to him as a
man who was very conscientious worker and there was no detailed
consideration of the extent to which his first episode had had
a substantial adverse effect on his day to day activities.
4.4 Nevertheless technically speaking a
person must show a persistent low-grade depression (dysthmia)
in order for there to be a continuing impairment with recurrent
effects, rather than (as usually happens), an impairment which
recurs. Other cases have foundered on this issue.
4.5 Furthermore in Mind's view this is an
unsatisfactory solution.
— It does not protect the person with
a single episode of depression.
— It is unfair and therefore stigmatising.
The person with cancer who is treated and who recovers will not
have to prove it is likely to recur—with all the fearful
and stressful implications of facing the prospect that it might
recur. Severe depression like cancer is also a frightening illness,
which can in severe cases lead to death through suicide.
March 2004
35 Causes of Action: Civil Law and Social Justice,
Pleasence et al. February 2004. Back
36
Defining Disability and Defining Employment Discrimination DRTF/12/99. Back
37
Australia (state and federal), Canada (provincial), USA, Ireland,
Israel, New Zealand, Netherlands, Sweden, Ghana, Mauritius, Phillipines,
South Africa, Zimbabwe, Hong Kong, India; also but not in antidiscrimination
context Finland, Spain, Italy, Germany. At an international level
see the UN Standard Rules on Equalisation of Opportunities for
People with Disabilities, Inter-American Convention on the Elimination
of All Forms of Discrimination against People with Disabilities
(1999). See also the European Commission definition (Commission
2000) cited in Hendricks "Disability as a Prohibitive
Ground for Discrimination; Different Definitions-Same Problems-One
Way Out?" 2000. Back
38
The drafters of the Australian federal DDA for instance believed
that over emphasis on the definition in the US law was misconceived.
This criticism has also been made of the UK DDA (for instance
by the Institute of Employment Studies in its evaluation of the
first five years of DDA cases. Back
39
EEOC Enforcement Guidance on the Americans with Disabilities Act
and Psychiatric Disabilities. Back
40
eg Goodwin v Patent Office; Leonard v Southern Derbyshire
Chambers of Commerce (2001) IRLR 19. Back
41
College of Ripon and York St John v Dr Hobbs EAT/585/00;
Daniel McNicol v Balfour Beatty Rail Maintenance Ltd
(Court of Appeal) a1/2001/2127 See also Jefferson v Wolseley
Centres Ltd EAT/0641/02/MAA in which an issue on which the
case had to be referred back was whether the medical problems
was a clinically well recognised "condition" or "illness";
Morgan v Staffordhsire EAT/ 11.12.01 0322/00. Back
42
Woodrup v London Borough of Southwark (2003) IRLR
111. Back
43
EAT/11.12.01 0322/00. Back
44
eg Smith v Plymouth Hospitals NHS Trust 1700097/00;
Power v Panasonic UK Ltd (2003) IRLR 151. Back
45
EAT/0353/03/DA. Back
46
See also Tyler v Johnson Controls Automotive
ET 2600614/00 in which it was accepted that the applicant's symptoms
of anxiety and depression were a clinical mental illness as certified
by two psychiatrists but did not accept that his concentration
was sufficiently impaired to qualify as disabled. The case shows
the danger of an applicant seeming to exaggerate his difficulties
of concentration and then losing credibility with the Tribunal
and the case! Back
47
Alford v Royal Mail 21/088/2000; Langley
v East Rivers Healthcare ET 2303759/99; Chaudhury
v LB of Newham EAT/237/02/ILB. Back
48
Langley v East Rivers Healthcare ET 2303759/99. Back
49
(1999) IRLR 600. Back
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