Worthingtons Solicitors

Disability discrimination – can an employee bring a disability discrimination claim without an official medical diagnosis?

The NI Court of Appeal case of Kelly v the Department for Communities and Department of Finance sheds light on the intricate interplay between mental health conditions, workplace accommodations and employers’ legal obligations, providing 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. 

The Disability Discrimination Act 1995 states that a person has a disability for the purposes of the Act if s/he has a physical or mental impairment which has a substantial and long-term adverse effect on his/her ability to carry out normal day to day activities.

The Court unanimously allowed the appeal against a decision of the Industrial Tribunal, which determined at first instance that the appellant was not a disabled person within the meaning of the legislation. In allowing the appeal, the Court found that the importance should not be on the diagnosis and whether one has been given or not, but that consideration should be given to the actual impairment of the employee and its effect.

In the appellant’s application to the Tribunal, he claimed that the respondents had discriminated against him on the basis of a mental health disability arising from a failure to make reasonable adjustments, citing generalised anxiety disorder and obsessive compulsive disorder, but without a formal medical diagnosis., Mr Kelly contended that his anxiety and OCD met the definition of disability and significantly impacted his ability to carry out job responsibilities effectively, specifically with regards his ability to concentrate, partake in accepted social interaction, and form social relationships, giving rise to an obligation on the Respondents to make reasonable adjustments; an obligation Mr Kelly contended the Respondents failed to discharge. .

The judgment underscored the importance of individualised assessments and reasonable accommodations tailored to the specific needs of the individual employee. The NI Court of Appeal. ruling in favour of Mr Kelly, emphasised that employers cannot dismiss or neglect employees’ mental health concerns solely due to the absence of a formal diagnosis.

The case is a stark reminder for future cases involving mental health accommodations in the workplace. It highlights that there is no one size which fits all scenario, and the necessity for employers to proactively support employees’ mental well-being and provide reasonable accommodations should the need arise, irrespective of formal diagnoses. Employers are  compelled to consider individual circumstances and ensure compliance with legal obligations to foster inclusive and supportive work environments.

The Judgement can be viewed here: https://www.equalityni.org/ECNI/media/ECNI/Cases%20and%20Settlements/2023/Court-of-Appeal-Judgement-PKelly-v-DeptsCommunities-Finance.pdf

Victoria Murphy is a Solicitor in the Employment Team and can be contacted via email at [email protected]. If you wish to speak with Victoria, or any member of the employment team, please contact the office on 02890434015.

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