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Disability Discrimination – Effect, Not the Cause

PLEASE NOTE: Information in this article is correct at the time of publication, please contact DFA Law for current advice on older articles.

In Walker v Sita Information Networking Computing Limited, the Employment Appeal Tribunal (EAT) found that the Employment Tribunal (ET) was in error in concluding that a claimant who was overweight and who suffered from a ‘constellation of symptoms’ that caused significant difficulty in his day-to-day life was not disabled for the purposes of the Disability Discrimination Act 1995 (DDA) – now superseded by the Equality Act 2010.

Mr Walker, who weighed 137kg, suffered from various conditions which gave rise to a variety of symptoms. The ET described this as ‘functional overlay’, a psychological condition which caused or aggravated Mr Walker’s physical symptoms, compounded by obesity. An occupational physician believed that Mr Walker suffered from a chronic permanent condition which affected his daily living and an occupational health specialist invited to examine him concluded that he had a wide range of symptoms in which a significant part was played by a behavioural component. However, there was no evidence of any pathological process to explain the range of symptoms nor any significant structural changes of a physical nature that would lead to significant impairment or disability, but anyone carrying that amount of weight would become breathless and fatigued and have difficulty walking because of leg pain.

The ET concluded that because no physical or mental cause could be identified, Mr Walker was not disabled for the purposes of the DDA.

Mr Walker appealed on the ground that it is not always necessary to categorise an impairment as physical or mental and it is the effect of the impairment, not its cause, that is material in deciding whether someone is disabled under the DDA.

The EAT said that when determining whether or not a claimant is disabled, an ET must concentrate on whether the individual has a physical or mental impairment. Plainly, on the evidence, Mr Walker was substantially impaired and had been for a long time. The ET had taken the wrong approach. The question is whether the individual has the impairment and whether the impairment may properly be described as physical or mental. The DDA does not require a focus on the cause of that impairment. Whilst there may be cases where the ET finds that a claimant’s symptoms are not genuine, the genuineness of the symptoms and their effects was not challenged in this case. In reaching its decision, the ET had failed to follow the guidance accompanying the DDA and had also wrongly relied on an authority which dated from the time when a recognised mental illness had to be demonstrated before a mental impairment could be regarded as a disability. The law was changed in 2005, when the requirement that the condition be a clinically well-recognised illness in order to qualify for protection under the DDA was removed.

On the question of obesity, the EAT did not accept that obesity of itself renders a person disabled, but it may make it more likely that someone is disabled.

Contact Gary Lee for advice on any employment law matter.

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