The Court of Appeal stressed the evidential burden of proof on a person relying under para 6 Sch 1 DDA on the effects that a disability would be likely to have if measures were not being taken to correct it.
Court of Appeal, 2002. Full decision: bailii.org.
The clamant argued that she had an anxiety neurosis, was receiving psychotherapy treatment which alleviated the effects, and if medical treatment were stopped she would deteriorate and full symptoms would return.
Held by Court of Appeal: the issue was whether, if treatment were stopped at the relevant date, her anxiety neurosis would have a substantial adverse effect on her ability to carry our normal day-to-day activities. “One asks the question whether, if treatment were stopped at the relevant date, would the person then, notwithstanding such benefit as had been obtained from prior treatment, have an impairment which would have the relevant adverse effect?”
The Court said: “In any deduced effects case of this sort the claimant should be required to prove his or her disability with some particularity. Those seeking to invoke this peculiarly benign doctrine under para 6 of the schedule [ie Schedule 1 DDA 1995] should not readily expect to be indulged by the tribunal of fact. Ordinarily, at least in the present class of case, one would expect clear medical evidence to be necessary.”
In this case no medical evidence whatsoever was called to support the claimant’s case under para 6. The EAT was right to conclude that the evidence produced ws bound to be regarded by the employment tribunal as insufficient to establish that her case fell within para 6(1).
For a possible alternative test (which I think is wrong) where the prognosis is that future treatment will result in there being no being substantial adverse effects, see British Telecommunications plc v Abadeh.
Simon Brown LJ who gave the main judgment of the court seemed to consider Sch 1 para 6 too generous to claimants. Para 6 provided “perhaps rather surprisingly”…, and was “peculiarly benign”. To my mind it is not at all surprising that if discrimination against a person whose condition exhibits actual substantial effects is unlawful, the same should apply if the effects of the condition are masked by treatment or other measures. Why should it be lawful to discriminate against the person in the second instance but not the first? Any discrimination in the second instance is that much less likely to be justified as the effects of the condition are being controlled, and the absence of para 6 could effectively penalise who choose to seek treatment.