Tribunal Report: The definition of disability can lead to legal problems

The continuing case of Rayner v Turning Point and others is one that highlights the caution needed when dealing with disability issues - particularly in relation to mental health

Victoria Willson, solicitor, Levenes Employment
Victoria Willson, solicitor, Levenes Employment

The story

Mr Rayner was engaged by a local branch of Turning Point, the national charity that deals with drugs and addiction. After his suspension, dismissal and reinstatement, he eventually ceased working for Turning Point in March 2008 and brought claims of disability discrimination and unfair dismissal in the Employment Tribunal.

The legal decisions

The Employment Tribunal held a pre-hearing review to decide whether Mr Rayner was disabled, as defined in the Disability Discrimination Act 1995. It decided that he was not because, even though he had a mental impairment, there was insufficient evidence that the condition had "a substantial long-term adverse effect on his ability to carry out normal day-to-day activities" - the legal test under the act. This meant that Mr Rayner's claim of disability discrimination could not proceed.

He appealed and the Employment Appeal Tribunal upheld his appeal on 5 November 2010, finding that the Employment Tribunal had mistakenly focused on a joint medical report that did not reflect amendments made in 2005 to the Disability Discrimination Act. The Employment Appeal Tribunal sent the case to a different Employment Tribunal for a new hearing, which has yet to take place.

In reaching its decision, the Employment Appeal Tribunal attached weight to Mr Rayner's own (unchallenged) evidence about his mental impairment, a medical certificate from his GP signing him off work, a letter from his GP and the decision in the case of J v DLA Piper, which had not been available to the Employment Tribunal.

These hearings did not deal with the question of whether Mr Rayner had been unfairly dismissed or discriminated against.

Lessons for charities

The EAT ruling draws attention to the liberal approach that tribunals can take when determining whether an individual with a mental impairment is disabled. Charities should keep in mind that the legal definition of disability is intentionally broad and it is not the condition itself but its effect on the individual that is the relevant factor. Depression or anxiety, for example, might constitute a disability in one case but not another. The claimant gave evidence of the effect of his condition on his day-to-day activities: difficulties in concentrating and sleeping.

The judge also commented that specific questions should have been put to the medical expert - which was not done in this case - and that GPs were often better placed to provide expert reports for conditions such as depression. It is therefore important for charities to seek legal and medical advice at the earliest possible stage, taking care not to overlook evidence from the individual's GP and documents that are already held, such as medical certificates.

On 1 October 2010, the Disability Discrimination Act - and other legislation - was replaced by the Equality Act 2010. This act is likely to make it easier for individuals, particularly those with mental impairments, to establish that they are disabled.

- Victoria Willson is a solicitor at Levenes Employment, third sector specialists

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