Khorochilova v Euro Rep Limited

The Employment Appeal Tribunal (EAT) has ruled that the tribunal did not err by finding a claimant had not demonstrated clear evidence that her ‘mixed personality’ disorder had a substantial adverse effect on her day-to-day activities.

Under section 6 of the Equality Act 2010, a person is deemed to have a disability if they have an impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. If this can be established, an employee is free to pursue a claim of disability discrimination, however the onus is on claimants to convince tribunals they are disabled. This can be complicated when considering mental impairments. 

In the case of J v DLA Piper LLP, the EAT ruled that, when establishing if a claimant does have a mental impairment for the purposes of the act, tribunals should not adopt a rigid, sequential approach to the questions that need to be asked of it. They should initially focus on the effect that the alleged impairment has on day-to-day activities.

FACTS

The claimant in this case worked for a company which specialised in breeding insects. She was later dismissed from her role, with management informing her this was due to issues that related to her management of a cricket colony. She later went on to bring a number of claims to the employment tribunal, which included disability discrimination. When submitting her ET1 form at the commencement of her claim, she did not specifically identify what disability she claimed to have, simply that she was ‘somewhat obsessive’ about her work.

ET

The tribunal held a preliminary hearing in order to determine if the claimant was disabled and if her discrimination claim would have had any reasonable prospect of success. At this time, the claimant outlined that she had a ‘mixed personality’ disorder and sought to rely on this in her claim. She provided a report for her psychologist that had been produced some years prior, which seemed to have diagnosed this condition, alongside additional GP reports.

The tribunal ultimately ruled that she was not disabled for the purposes of the act. Firstly, they questioned if she had an impairment at all, especially as there was no reference to it in her GP report and she had not actually been diagnosed with a recognised personality disorder. Despite this, they did also assess if her condition did have an adverse effect on her as outlined by the Act, concluding that she had not provided any satisfactory evidence of this. She was not on any medication, and certain behaviours she exhibited were not sufficient proof.

EAT

The claimant appealed to the EAT on numerous grounds, which included that the tribunal had erred by not considering if her condition constituted a mental impairment. However, the EAT dismissed her appeal, finding the reasoning of the tribunal was correct and not perverse.

The EAT first analysed the statute, outlining that the tribunal had first needed to identify an impairment and then determine if this impairment had a long-term, adverse effect on her day to day activities. From what the EAT could establish, they had done this; the tribunal had first considered the psychologist report and concluded that an impairment hadn’t been fully established, but had also considered the adverse effect element regardless.

The EAT outlined that, in situations were there is a question that certain personality traits amount to a mental impairment, the real question is whether there is evidence of a substantial adverse effect. As had been held in Piper, the appropriate approach is to consider the question of impairment in light of the evidence of the adverse effect. The tribunal had expressly considered this, finding that she was able to manage her condition without any form of medication or treatment. They had therefore been within their rights to conclude that on the balance of probabilities, an adverse effect was not present.

Note for employers

When claimants wish to proceed with a claim of disability discrimination, they will first need to establish that they have a disability for the purposes of the Equality Act. Tribunals will approach this question by considering the evidence provided; if the claimant can demonstrate this, it will not matter if the organisation was not satisfied that such an impairment was not present previously.

To this end, organisations should always take into account situations where claimants are struggling in their role and if it may indicate that they do have a disability. Personality disorders in particular can be a complicated area and employees should always feel comfortable coming forward if they do have a problem. If employees are starting to act in certain ways at work that seem out of character, it may be that further support is needed.

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