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Dunham v Ashford Windows

EAT, [2005] IRLR 608

The issue arose of whether an employee with 'severe reading and writing difficulties' had a disability within the DDA. A consultant educational psychologist said he had 'generalised learning difficulties causing a cognitive or mental impairment.'

In Morgan v Staffordshire University the EAT had suggested that where there is a mental impairment which neither results from nor consists of a mental illness, it would require 'substantial and very specific medical evidence to support its existence,' The employer in the present case said this had not been given .

Held by EAT: the applicant did have a mental impairment.

This seemed to be the first case where the issue had arisen directly of how to approach a mental impairment in the absence of any suggestion of mental illness.

There is a clear distinction between mental impairment consisting of learning difficulties or disability, formerly known as mental handicap, and mental illness. Sch 1 para 1(1) DDA clearly includes within the definition of mental impairment an impairment which does not arise from mental illness. The first three routes in Morgan relate to mental illness but there must be a fourth route by which an applicant who bases his case on learning difficulties or mental handicap can seek to establish that he suffers from mental impairment. Also in McNicol, Mummery LJ's requirement for a clinically well recognised illness should be taken as referring only to mental illness.

Even though a clinically well recognised illness is not required, it is unlikely to be sufficient to show only that the applicant had difficulties at school or is 'not very bright'. Tribunals are likely to look for expert evidence as to the nature and degree of the claimed impairment, and for evidence of a particular condition from which the claimant suffers.

The fact that the learning difficulties were generalised did not prevent them being a specific condition. Read as a whole the psychologist's report did identify a specific condition, namely borderline moderate learning difficulties that were generalised.

In the case of learning difficulties the EAT saw no reason why essential evidence establishing the nature of the condition should not be provided by a suitably qualified psychologist rather than a doctor.

A full transcript is available at www.employmentappeals.gov.uk/Public/Upload/UKEAT0915042332005.doc.

Comment

Before 5th December 2005, DDA Sch 1 para 1 said that 'mental impairment' includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well-recognised illness. (The Disability Discrimination Act 2005 abolished this requirement, from 5th December 2005.) The Dunham case hopefully lays to rest the tendancy in cases such as Morgan and McNicol to say that this provision applied, or may well apply, in all cases of mental impairment. That tendancy was never supported by the statutory wording. This case makes clear that one can have a mental impairment which does not involve a mental illness, and in such a case the requirement that it be a clinically well-recognised illness did not apply. Also there is no ground to say, as was said in Morgan, that a case not involving mental illness would require 'substantial and very specific medical evidence'

The case may not be relevant for stammering in that (a) stammering would more likely be seen as a 'physical' impairment - see the Blacker case; and (b) even if it were a 'mental' impairment, stammering is clinically well recognised, at least as a condition rather than an illness - see ICD and stammering. The case just helps smooth out any minor technical bumps in the argument that stammering can be a disability even if it is a mental impairment.

See also Jefferson v Wolseley Centres (EAT/0641/02) on "illness" versus "condition".

'Physical or mental impairment'

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