Appeal court hears mental impairment case

The Employment Appeal Tribunal (EAT) has ruled that the Employment Tribunal (ET) did not err by finding a claimant had not demonstrated clear evidence that her ‘mixed personality’ disorder had a substantial adverse effect on her day-to-day activities.

The claimant in Khorochilova v Euro Rep Limited worked for a company which specialised in breeding insects. She was later dismissed from her role, with management informing her that this was due to issues that related to her management of a cricket colony. She later went on to bring a number of claims to an employment tribunal, which included disability discrimination. When submitting her ET1 form at the commencement of her claim, she did not specifically identify what disability she claimed to have, simply that she was ‘somewhat obsessive’ about her work.

The ET held a preliminary hearing in order to determine if the claimant was disabled and if her discrimination claim would have had any reasonable prospect of success. At this time, the claimant outlined that she had a ‘mixed personality’ disorder and sought to rely on this in her claim. She provided a report from her psychologist that had been produced some years prior, which seemed to have diagnosed this condition, alongside additional GP reports.

The ET ultimately ruled that she was not disabled for the purposes of the Act. Firstly, they questioned if she had an impairment at all, especially as there was no reference to it in her GP reports, and she had not actually been diagnosed with a recognised personality disorder. Despite this, they did also assess if her condition had an adverse effect on her, concluding that she had not provided any satisfactory evidence of this. She was not on any medication, and certain behaviours she exhibited were not sufficient proof.

The claimant appealed to the EAT on numerous grounds, which included that the ET had erred by not considering if her condition constituted a mental impairment. However, the EAT dismissed her appeal, finding that the reasoning of the ET was correct and not perverse.

The EAT first analysed the statute, outlining that the ET had first needed to identify an impairment and then determine if this impairment had a long-term, adverse effect on her day to day activities. From what the EAT could establish, the ET had first considered the psychologist report and concluded that an impairment hadn’t been fully established but had considered the adverse effect element regardless.

When claimants wish to proceed with a claim of disability discrimination, they will first need to establish that they have a disability for the purposes of the Equality Act 2010. Tribunals will approach this question by considering the evidence provided; if the claimant can demonstrate this, it will not matter if the employer was not satisfied that such an impairment was not present previously. To this end, employers should always consider situations where claimants are struggling in their role and if it may indicate that they do have a disability.

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