DISABILITY

Dunham v Ashford Windows Ltd

EAT: Judge Burke QC, Dr S R Corby and Mr P A L Parker: 13 June 2005

The claimant, a fork lift truck driver, was dismissed on the ground that he was not able to learn to do his job safely. An employment tribunal, on a preliminary hearing to determine whether the claimant, who suffered from learning difficulties but not from any mental illness, was a disabled person within the meaning of section 1 of the Disability Discrimination Act 1995, considered an unchallenged report from a consultant educational psychologist which concluded that the claimant was suffering from generalised borderline moderate learning difficulties. The tribunal found that the report identified the consequences of any condition but did not attempt to define a specific mental impairment and held that, as there was no specific medical evidence to identify what, if any, mental impairment the claimant was suffering from, it could not conclude that the claimant's limitations resulted from a specific clinical condition and, accordingly, he did not have a disability for the purposes of the Act.

The claimant appealed.

The Employment Appeal Tribunal held:
A distinction between mental impairment consisting of learning difficulties and mental illness was consistent with the natural construction of paragraph 1(1) of Schedule 1 to the Disability Discrimination Act 1996, which clearly included within the definition of "mental impairment" an impairment which did not arise from a mental illness. The words "only if the illness is a clinically well recognised illness" in paragraph 1(1) applied only to mental illness and not to a case of mental impairment which was not or did not consist of mental illness, though tribunals were likely to look for expert evidence as to the nature and degree of the impairment and the particular condition from which the claimant claimed to suffer. The tribunal had erred in concluding that there was no such condition on the evidence, which did identify a specific condition, namely borderline moderate learning difficulties which were generalised, and in relying on the fact that the expert was a psychologist and not a doctor, since in the case of learning difficulties there was no reason why the essential evidence should not be provided by a suitably qualified psychologist.

The appeal was allowed.

Appearances: Taqdir Bains, representative (Citizens Advice Bureau Specialist Support Unit, Wolverhampton), for the claimant; Thomas Kibling (Eversheds, Norwich) for the employers.