Are employers discriminating against disabled working minds? Neil Allen reports
The Disability Discrimination Act 1995 (DDA 1995) protects job applicants and employees whose physical or mental impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Prior to December 2005, any mental impairment must also have resulted from or consisted of a “clinically well-recognised” mental illness. This diagnostic threshold was intended only to exclude moody or mildly eccentric claimants from statutory protection. However, “psychiatry is not an exact science. Diagnosis is not easy or clear cut” (R (on the application of B) v Ashworth [2005] 2 All ER 289 per Baroness Hale). As a result, DDA 1995 did nothing to prevent employers from treating less favourably those whose psychiatric symptoms were not clinically well-recognised.
Despite having little more than “a layman's rudimentary familiarity with psychiatric classification” (Morgan v Staffordshire University [2001] All ER (D) 119), employment tribunals have been expected to assess often complex expert evidence. The Employment Appeal Tribunal's (EAT's) guidance in Morgan suggested various
