Hewett v Motorola [EAT 16/12/04]

The Claimant (H) suffered from autistic spectrum disorder and/or Asberger’s syndrome. The issue before the court was whether this amounted to a disability within the meaning of the Disability Discrimination Act 1995.  A disability under the Act is one that amounts to a long-term impairment that substantially affects a person’s ability to carry out normal day-to-day activities.  H submitted that his condition was such a disability as his ability to concentrate, learn or understand was substantially affected.  He further submitted that the respondent employer had discriminated against him by failing to make reasonable adjustments for his condition and in treating him less favourably.  The employer argued that H was not a disabled person within the definition of the Act and denied discrimination against him.

The issue as to whether H was disabled within the Act was determined by the employment tribunal as a preliminary issue.  The tribunal held that although H’s condition was long term and did have an adverse effect on his ability to participate in human interaction, social relationships and communication – this did not amount to impairment within the Act.  H appealed against this decision on the basis that an inability to understand the subtleties of human interaction did fall within the Act.

The EAT held that the determination of the issue of disability required clear medical evidence.  It was not for the employment tribunal to obtain evidence or make sure that adequate medical evidence is obtained by the parties.  However the EAT held that the tribunal’s approach to the concept of “understanding” was at fault since it failed to acknowledge that someone who has difficulty in understanding normal social interaction among people, has their understanding affected.  As a result, the concept is not limited simply to an ability to understand information, knowledge or instructions.  Furthermore, the tribunal was at fault in not considering the Code of Practice, as this appears to acknowledge that autism falls within the scope of DDA 1995.  Para 4.58 specifically gives an example of an employee with autism as an example of such co-operation being required.  The EAT took the view that the concept of “understanding” within the DDA 1995 required a broad construction.  Under the Guidance issued for the Act, a person’s ability to take in new knowledge was a factor that could arise in relation to the concept of understanding. There was clear evidence in this case that H might have difficulty in understanding or appreciating new information if it was not outlined in clear and unambiguous terms.   The EAT held that the tribunal was in error in not accepting that H’s ability to understand was affected by his impairment.

Comment

The issue of the determination of whether a disability falls within the DDA arose again in Dunham v Ashford Windows EAT [2005].  Evidence from a psychologist had established that the appellant had “borderline moderate learning difficulties”, which was a specific condition of mental impairment for the purposes of s.1 (1) of the Act.  The original employment tribunal rejected this evidence, and concluded that the appellant had not established a specific mental impairment or clinical condition.  The EAT held, in contrast to Hewett above, that in cases of mental impairment there was no reason why the essential evidence which established the nature of the condition from which the appellant claimed to suffer should not be provided by a suitably qualified psychologist, rather than a medical practitioner, who would only be expected to give evidence in the case of a mental or physical illness. What was important was that there was evidence from a suitably qualified expert who could speak, on the basis of his experience and expertise, as to the relevant condition.

On 5/12/05 the DDA was amended so that the definition of disability will now include people with HIV, MS, and cancer on diagnosis.  The requirement that mental illness is clinically well-recognised will also be removed.  From 4/12/06 there will be a statutory duty on public authorities to promote equality of opportunity for disabled people which will be analogous to the duty under s.1 of the Race Relations Act 1976

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