disability discrimination: discrimination on grounds of
perceived disability
Two recent cases have attempted to introduce the concept that a
person is protected under the Disability Discrimination Act 1995
(DDA) against discrimination for a perceived disability, even if
they do not in fact have a disability. The cases relied on the
decision in Attridge Law v Coleman which established that
under EU law, the DDA should be interpreted to protect those
discriminated against because of the disability of another (in that
case, Ms Coleman's disabled son). However in both cases the EAT has
rejected the argument that this extends to persons with a perceived
disability, although neither case can be said to be a definitive
answer on the subject.
In the first case, it was argued that a police officer with
Obsessive Compulsive Disorder (OCD), who had acted aggressively and
intimidated colleagues, was discriminated against on grounds of his
perceived dangerous mental illness. In fact he did not have such a
dangerous mental illness. The EAT did not accept that EU law
covered action taken because of a mistaken perception that a person
has a disability. The DDA did not therefore have to be interpreted
in this way. In 2008 the Court of Appeal concluded that a man
subjected to homophobic banter, even though he was not genuinely
perceived to be homosexual, was protected from such harassment
under the Employment Equality (Sexual Orientation) Regulations
2003. Although that case envisaged that a person mistakenly
perceived to be homosexual would be protected, the wording of the
sexual orientation and other discrimination regulations was
different from the DDA. The DDA specifically refers to "the
disabled person's disability" and "a person who has a disability".
Discrimination must relate to an actual disability, even if, under
EU law, that is the disability of another. However arguably this
conclusion is still open to challenge, because the ET's findings of
fact meant that the question in the EAT was academic.
In the second case, a job applicant had her job offer from a law
firm withdrawn when she disclosed her history of depression. The
firm cited a recruitment freeze as the reason. However when an ET
held that she was not disabled, she argued in the EAT that she had
been discriminated against based on a perception of disability. Her
argument was not allowed as she had not raised this in the ET, but
in any event it was considered, similarly to the first case, that
Coleman did not require an extension of protection to perceived
disabilities. This will be a relief to employers although the
position could be changed if an appropriate case was referred to
the European Court of Justice.
Another noteworthy conclusion of the EAT in the second case was
that a GP is fully qualified to express an opinion on whether a
patient is suffering from depression. More weight may be given to
the conclusions of a specialist, but a GP's evidence may not be
ignored if a specialist gives inconclusive evidence or has not seen
the patient.
