J v DLA Piper UK LLP (2010) UKEAT 0263/09/1506

(1) In holding that at the material time (June 2008) the claimant was not suffering from 'clinical depression' amounting to a disability within the meaning of the DDA 1995, the Tribunal had (a) wrongly declined to give weight to the evidence of Claimant's GP, on the issues both of impairment and of 'deduced effect', because she was not a specialist; and (b) made a perverse finding as to whether the claimant's past depression had amounted to an impairment having a substantial adverse effect on her ability to carry out normal day-to-day activities, which was material both to the question of whether she had an impairment in June 2008 and to the potential application of para 2(2) of Schedule 1. (2) The appeal was allowed and the issue remitted. (3) Discussion of: (a) correct approach to issue of 'impairment' in cases involving a mental disability following the repeal of para 1(1) of Schedule 1; (b) distinction between 'clinical depression' and reactions to stress or other adverse circumstances producing similar symptoms; (c) whether claimant with a history of recurrent depressive episodes can be said to suffer an impairment in the intervals between episodes. (4) Claimant refused permission to advance a point not raised before the Tribunal to the effect that even if she was not in fact disabled at the time of the acts complained of the Respondents perceived her to have been; that discrimination on the basis of such "perceived disability" was contrary to EU law; and that the 1995 Act could be construed so as to give effect to that prohibition, by analogy with EBR Attridge LLP v Coleman [2010] ICR 242. [Summary based on judgment headnote.]

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