BDBF will be in the Court of Appeal on Tuesday this week, acting for the Claimant in a disability discrimination case. Chris Milsom of Cloisters Chambers will appear as counsel.
The appeal concerns the definition of "disability" in the Equality Act 2010 and, in particular, the circumstances in which a mental health condition recurring over a number of years meets that definition. The outcome of the case will potentially be significant for employees whose mental health conditions fluctuate over time.
The Equality and Human Rights Commission has provided legal assistance for this case to be heard in the Court of Appeal.
The hearing comes shortly after World Mental Health Day and at a time of increased public discourse about the importance of mental health, particularly in the workplace.
Our client is appealing the decision of Mr Justice Choudhury in the Employment Appeal Tribunal (EAT) which held that the Employment Tribunal (ET) had not erred in concluding that the long-term requirement in the definition of disability was not met on the facts of our client's case. According to the EAT, the ET was entitled to conclude on the evidence that, although there was a substantial adverse effect in one year which was then repeated four years later, in neither case was it likely that the adverse effect would last for 12 months or that it would recur again. According to the EAT, the ET had been correct to interpret "likely" as if it meant "could well happen", and that it had approached the question of the likelihood of recurrence correctly. The EAT also held that the ET had not erred in deciding that the employer did not know and could not reasonably be expected to know of our client's disability.
The arguments in our client's appeal include that the ET set the bar too high when assessing the effect of the Claimant's condition, and that it failed to consider the impact the mental health impairment had on our client's professional activities which ultimately led to his dismissal
Our hope is that the Court of Appeal will provide further clarity on the extent to which historic episodes of mental health issues that take place over a period of years can be taken together to demonstrate a recurring mental health issue which is sufficient to satisfy the definition of disability for the purposes of gaining protection under the Equality Act 2010.