The Court of Appeal gave judgment yesterday in an interesting disability discrimination case about mental illness.
Elizabeth McDougall applied for a job at the college in 2005, and got it – subject to medical checks. But when those checks were made, the college withdrew the job offer. Ms. McDougall suffered from persistent delusional disorder and schizo-affective disorder, and had been treated in 2001-2 in hospital under the Mental Health Act, and then in the community by a consultant psychiatrist, whose view was that she was now fully able to return to work. A bit sad, you might think, that the college felt it had to go back on its offer because of Ms. McDougall’s history of mental illness. I agree.
She made a complaint of disability discrimination to the Employment Tribunal, and the legal issue that went to the court of appeal was whether she was disabled within the meaning of the Disability Discrimination Act 1995.
According to section 1, she’d satisfy the definition if she had
a physical or mental impairment which has a substantial and long term adverse effect on [her] ability to carry out normal day-to-day activities.
Of course Ms. McDougall was not arguing that her underlying mental illness stopped her doing her job; her psychiatrist though it wouldn’t. But Schedule 1, paragraph 2(2) provides that
Where an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.
If, then, her condition was likely to recur, she’d be disabled, and the dismissal would be discrimination, contrary to section 4(2)(d).
Now, at the time of the dismissal, it would seem to have been reasonable to think the conditions, in their more serious, work-affecting form, wouldn’t be likely to recur: Ms. McDougall was well and fit for work. But as it happened, Ms. McDougall went downhill and the condition did recur, following the dismissal. So when the case reached the Employment Tribunal, how should the tribunal approach the question whether at the time of the alleged discrimination the condition was likely to recur? Would it be right to take into account the knowledge that it did in fact recur? Or should the tribunal ignore that, and consider only the evidence at the time?
The ET ignored the fact of the later recurrence; the Employment Appeal Tribunal reversed that, holding that the later knowledge was relevant; and now the Court of Appeal has reversed the EAT’s ruling, deciding that the later recurrence is not to be taken into account. At the time, Ms. McDougall’s condition was, on the evidence, unlikely to recur – and she was not disabled. The college did not discriminate unlawfully against her.
What I think is strange is how de-coupled the approach of the parties and the Court seems from the social reality here. Of course Ms. McDougall, at the time she got the job, would have hoped her mental health problems were behind her. Had she been asked she would have said, presumably, that they were unlikely to recur. As for the employer, you have to ask why they withdrew their offer: because they feared her mental health problems might well recur, presumably. The reason they dismissed her was obviously because of her mental health problems, and the risk of their recurrence – so it seems very odd indeed that they should be able to argue, now, that at the time they thought it unlikely.
I expect advocates and campaigners on mental illness feel quite gloomy about this case.
From a more pragmatic position I’d suggest that this is a calculation of risk – by both parties. The employer has made an assessment of evidence supporting an application. The potential employee has made a calculation as to the likelihood of re-occurence.
Clearly the employer felt that risk was unacceptable – in the light of medical reports and an assessment of the credibility of those reports. That may not have been unreasonable – indeed it was clear that subsequent unfortunate events vindicated that view.
One might wonder whether any form of indemnity might be sought by employers – possibly from those furnishing their professional views as to the suitability of candidates. If such guarantees are not forthcoming then why should employers take those risks?
Yes, but if it was reasonable for the employer to think her condition was likely to recur… then how come they escape a finding of discrimination by arguing that on the evidence at the time is was unlikely to recur?
There’s something funny about a law that results in each party at tribunal taking a position on the likelihood of recurrence that’s the exact opposite of the position it took in reality at the time.
The unusual result stems from the DDA being a very different beast to other discrimination legislation. It works by defining a disabled person, then offering that class of person protection. If she’s not disabled under the Act, there’s no jurisdiction for any finding of discrimination. So the result is odd: she was dismissed because of her disability (not a great thing to do to anyone), but because she wasn’t in fact disabled at the time she can’t make a claim.
This position is in contrast with other discrimination legislation, which doesn’t create a class of protected person, but rather defines grounds on which it is unlawful to discriminate. Sack someone for being gay, and their actual orientation is completely irrelevant.
What’s surprising is that none of the authorities on Unfair Dismissal were argued – it’s been settled law for some time that in determining the fairness of the reason for a dismissal, the tribunal must have no regard to any events or knowledge subsequent to the decision to dismiss. This places the obligation squarely on the employer to consider the evidence fairly and come to a reasonable decision. Thus the employer who dismisses an employee for stealing in the face of very flimsy evidence indeed will still have dismissed unfairly even if his view is subsequently vindicated by later investigation. Similarly, if he is faced with evidence that give him a reasonable and genuine belief that the stealing occurred then his dismissal will still be fair even if someone else later confessed.
Given the goal of all employment law of maintaining ‘good industrial relations’, it seems to me that the only just way is to take this approach – either the employer acted rightly or wrongly, he shouldn’t be either condemned or let off the hook by later events.