The claimant argued that she was disabled under the normal DDA rules but that, even if not, she was protected under European law because the employer ‘perceived’ her to have a disability, given her history of depression. The EAT said that whether ‘perceived’ disability is covered by the relevant European directive would require a reference to the European Court. The EAT refused to make such a reference at present, given the point had not been raised in the lower tribunal and further fact-finding would be required.
Employment Appeal Tribunal, 2010. Full decision: bailii.org.
Facts
A job offer to the claimant was withdrawn. She alleged this was as a result of her disclosing a history of depression. The employer said it had decided to impose a recruitment freeze as a result of the credit crunch. In a decision considering the preliminary point of whether or not she had a disability within the meaning of the DDA, the Employment Tribunal held that she did not.
Held by the Employment Appeal Tribunal (EAT): the case should be sent back for reconsideration by the Employment Tribunal because, broadly, some of the evidence had not been adequately considered. The EAT’s decision includes discussion of the need for there to be an ‘impairment’ within the DDA, and the role of evidence on adverse effects in deciding whether there is an impairment (see Adverse effects (thompsonstradeunion.law)).
The claimant’s appeal to the EAT succeeded under ‘normal’ DDA rules on meaning of disability, without resorting to European law. However, this page focusses on the alternative European law argument raised by the claimant, based on ‘perceived disability’:
Perceived disability
The claimant argued that even if she did not have a disability as defined by the DDA, she was perceived by the employer to have a disability and therefore had a claim in the light of the European Framework Employment Directive. This was by analogy with the Coleman case on discrimination by association. (For more on this argument see Perceived discrimination).
A problem was that the claimant had not argued this point to the Employment Tribunal. Her representative argued that this was one of those rare cases where a new point of law should be allowed to be raised. The EAT disagreed and refused to allow the perceived discrimination case to be raised in this appeal to it. The EAT said it would be open to the claimant, if she wished, to apply for permission to amend to raise the case in the Employment Tribunal. The EAT said, in giving its reasons for not allowing the point to be taken before the EAT:
62. The starting-point is that in our view the second step in the case as summarised above [i.e. that the Directive covers discrimination on the grounds of “perceived” disability] could not be adopted without a reference to the European Court of Justice. While we see the analogy with the case of associative discrimination, we do not regard it as self-evidently correct. The concept of “perceived disability” presents issues different from those presented by the question whether a person (either a claimant or a person with whom he or she is “associated”) is in fact disabled. What the putative discriminator perceives will not always be clearly identifiable as “disability”. If the perceived disability is, say, blindness, there may be no problem: a blind person is necessarily disabled. But many physical or mental conditions which may attract adverse treatment do not necessarily amount to disabilities, either because they are not necessarily sufficiently serious or because they are not necessarily long-term. If a manager discriminates against an employee because he believes her to have a broken leg, or because he believes her to be “depressed”, the question whether the effects of the perceived injury, or of the perceived depression, are likely to last more or less than twelve months may never enter his thinking, consciously or unconsciously (nor indeed, in the case of perceived “depression”, may it be clear what he understands by the term). In such a case, on what basis can he be said to be discriminating “on the ground of” the employee’s – perceived – disability? We do not say that the question is unanswerable, but we do say that it is not so clear that we could proceed without a reference.
63. [The claimant’s representative] invited us, if that was our view, to make a reference at this stage. However, even if we allowed the point to be taken, we would not be prepared to do so. In the first place, it may never be necessary to resolve the issue of perceived discrimination in this case at all: if, on the remitted hearing which we have directed, the Claimant is found to have been in fact disabled at the relevant time the question of perceived disability becomes redundant. It is true that a reference to the European Court of Justice might (we are not sure) be rather cheaper than a remitted hearing in the Employment Tribunal, but it would certainly take longer, and there would still be the need for a hearing on [whether the DDA could be construed to include perceived disability] (and indeed possible appeals). Secondly, the whole issue may be academic: it is not yet established whether the [employer] in fact acted on the alleged ground at all. Thirdly, and related to the second point, we think it would be positively undesirable for the Court to be asked to consider a referred question on the issue of perceived discrimination on the basis of assumed facts: among other things, the questions canvassed in para. 62 above mean that the Court should have the benefit of careful and thorough findings (so far as the evidence permits) about precisely what was going on inside the heads of the alleged discriminators.
My comment
The DLA Piper case very much leaves open the possibility that the question may be referred to the European Court of whether European law requires discrimination by an employer on grounds of perceived disability to be illegal, where the person is not actually disabled. The reference might be in this case or a future one.
The issue can be relevant where a person does not meet the DDA definition of disability, e.g. because an impairment does not have the required substantial adverse effect. Direct discrimination and harassment based on perceived disability will in any event be covered by the Equality Act 2010 when that comes into force.
For more on perceived disability and possible relevance for stammering, see Perceived Disability.
- Perceived Disability – position under Equality Act 2010.
