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Morgan v Staffordshire University

EAT, [2002] IRLR 190

The EAT upheld the employment tribunal's decision that the applicant did not have a mental impairment.

In doing so, it commented on Schedule 1 para 1 DDA, which provided (before 5th December 2005) that a mental impairment includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well recognised illness:

After reviewing the official guidance on the definition of disability, it continued:

"Accordingly in general there will be 3 or possibly 4 routes to establishing the existence of 'mental impairment' within the DDA namely:-

(i) proof of a mental illness specifically mentioned as such in the World Health Organisation's International Classification of Diseases ('WHOICD');

(ii) proof of a mental illness specifically mentioned as such in a publication 'such as' that classification, presumably therefore referring to some other classification of very wide professional acceptance;

(iii) proof by other means of a medical illness recognised by a respected body of medical opinion.

A fourth route, which exists as a matter of construction but may not exist in medical terms, derives from the use of the word 'includes' in para 1 (1), Schedule 1 to the Act. If, as a matter of medical opinion and possibility, there may exist a state recognisable as mental impairment yet which neither results from nor consists of a mental illness, then such state could be accepted as a mental impairment within the Act because the statutory definition is inclusive only rather than purporting to exclude anything not expressly described by it. This fourth category is likely to be rarely if ever invoked and could be expected to require substantial and very specific medical evidence to support its existence."

The EAT also gave further substantial guidance to employment tribunals on 'mental impairment' cases.

A full transcript is available at www.employmentappeals.gov.uk/Public/Upload/EAT03220011122001.doc.

Comment

On the plain wording of Schedule 1 para 1, I cannot see why the fourth category should be so narrow. Stammering seems to me an obvious example of a well recognised impairment, arguably mental, which however is not based on a mental "illness". Stammering is a 'condition' rather than an illness.

The EAT in Dunham v Ashford Windows (2005) has now disagreed with the tribunal in the Morgan case and held that the fourth category is much wider. It is perfectly possibly to have a mental impairment - eg learning disability - that is not based on a mental illness. Also there is no particular requrement for 'substantial and very specific medical evidence to support its existence'.

'Physical or mental impairment'

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