Free Employment Advice - Disability Discrimination: Anxiety Disorder: Medical Evidence

W complained of disability discrimination. The question whether she was a “disabled person” for the purposes of the 1995 Act was taken as a preliminary issue by the employment tribunal. W stated that she had suffered from an anxiety neurosis since 1991, that she was receiving psychotherapy treatment and that if treatment were stopped, she would deteriorate and full symptoms would return.

W brought the following medical evidence:

• A letter from a consultant psychiatrist, dated 1992, stating that W had been a hospital patient being treated for a generalised anxiety disorder.

• A sick note dated 1993 indicating that she should stay off work for three months because of a nervous disorder.

• A medical note from a GP, dated 1999, stating that W had suffered from an anxiety neurosis for five years.

• A letter dated 1999 from a consultant psychiatrist confirming that she had been receiving treatment since 1992.

The tribunal ruled that W had not substantiated her claim that she was a disabled person. W appealed to the EAT. It was argued on her behalf that the tribunal had failed to have regard to paragraph 6 of Schedule 1 to the 1995 Act, which states, in summary, that an impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or to correct it, is to be treated as having that effect.

The EAT dismissed the appeal and W appealed to the Court of Appeal. The Court of Appeal dismissed the appeal and made the following points:

• The question to be asked, in relation to paragraph 6 of Schedule 1, is whether, if treatment were stopped at the relevant date, would the person then, notwithstanding such benefit as had been obtained from prior treatment, have an impairment which would have the relevant adverse effect.

• No medical evidence whatever had been called to support W’s case under paragraph 6. The evidence was confined to what W herself surmised would have happened. The EAT had been right to conclude that the medical documents which W produced in evidence, coupled with her own evidence, were bound to have been regarded as insufficient to establish that her case fell within paragraph 6.