How Depressing!

No, not England’s World Cup performance.

It’s often very difficult for employers to decide whether the medical condition that a member of staff raises is a disability as defined by the Disability Discrimination Act. The prudent approach is if in any doubt, consider whether ‘reasonable adjustments’ can be made to facilitate them in their role.

In the recent case of J v DLA Piper UK the EAT looked at whether a GP’s advice on whether J’s depression was a disability could be disregarded in favour of the advice of a specialist. J applied for a job with DLA Piper, but was rejected once she told them that she suffered from depression. The EAT said that a Tribunal (and therefore an employer) should place value on the diagnosis of the employee’s GP, and whether someone has suffered the condition in the past (because of the ‘likely to recur’ consideration).

There is no statutory definition of ‘mental impairment’ and in considering whether J’s condition had an impact on her ability to carry out normal day to day activities, and in particular her ability to concentrate, the Tribunal should have taken into account her GP’s evidence. A GP is fully qualified to express an opinion on whether a patient is suffering from depression, as depression is a condition very often encountered in general practice. Whilst the advice of a specialist may be more valuable, the advice of a GP should not be disregarded if the evidence of a specialist is not available or is inconclusive.

If someone informs you as part of the recruitment process that they suffer from depression, then beware. Of course you may not have offered them the job anyway, but do ensure that you can objectively justify such a decision. If you offer someone a job, and only then find out about their medical condition, it would be unwise to withdraw a job offer without first taking legal and medical advice. GP’s are often sympathetic towards their patients, and this may affect the opinion they express. If you think this might be the case, go directly to a suitably qualified specialist.

James Carmody