A disability discrimination case that went to the Court of Appeal has been described as an ‘extremely important decision’ by solicitor Tara Clements from Edwards & Co.

Approximately a third of the applications for employment cases from the Police Federation for Northern Ireland relate to disability discrimination and are funded by the organisation.

The case was Peter Kelly v the Department for Communities and Department of Finance. The ruling means Mr Kelly can take his claim back to the Industrial Tribunal to be reheard.

Ms Clements recounts the details of the case.

Overview

Mr Kelly brought a claim in March 2018 against his employer for direct disability discrimination and failure to make reasonable adjustments arising from his mental health conditions. Mr Kelly suffered from an anxiety disorder and Obsessive Compulsive Disorder and struggled with day to day activities including his ability to concentrate, taking part in normal social interaction and forming social relationships. His employer disputed his status as a disabled person due to the fact he did not have a formal medical diagnosis of autism, despite the medical evidence clearly documenting his long term suffering of these impairments.

The legal test for the Tribunal to consider when deciding if Mr Kelly was a disabled person, is set out in the Disability Discrimination Act 1995, which states that a person is considered to be disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

The Industrial Tribunal held that Mr Kelly was not disabled as defined by the DDA 1995.

Mr Kelly appealed this decision to the Court of Appeal on the basis that the Tribunal erred in law in interpreting and applying the statutory test for disability as set out in the DDA 995. He contended that they failed to consider the medical evidence that was presented to them, which demonstrated the effects that his conditions had on him and his ability to carry out day-to-day activities.

In Paragraph 43 of their judgement, the Court of Appeal states:

In the field of disability discrimination, the jurisprudence could not be clearer, one has to look to the symptoms of the disability and not focus on the label. The job of the Tribunal is to look at the effects of the impairment on the ability to carry out the day-to-day activities listed in the Act. It is a legal and not a medical test.

The Court of Appeal, therefore, unanimously allowed the appeal against the Industrial Tribunal’s decision that the appellant was not a disabled person under the Disability Discrimination Act 1995.

Assessment

This case presents a useful assessment of the test for employers and the Tribunal when determining whether an individual has a disability, even in the absence of an official medical diagnosis at the time. This judgement clarifies that the focus should be on the impairment suffered by the employee and the impact this has on their day-to-day lives rather than whether they have an official diagnosis or not.

Impact

This is an extremely important decision within the landscape of disability discrimination claims. These are the most common type of claims we see brought to us by PFNI members.