Martin Brewer and Esther Smith advise on whether depression is covered in this instance under the disability discrimination act.

The question: Is depression covered by the DDA?

I had been off work for some six weeks with depression. When I returned OH said that I was fit to work, without adjustments, but OH also said they could not guarantee me delivering a reliable service.

I have an issue with my employer over the DDA and they advise that I am not covered because I was only off for six weeks and OH had said I was fit to work; however my employer has totally ignored the comment that I could not deliver a reliable service. As such they did not carry out any further investigation and are denying that I am covered by DDA.

Additionally since the first OH report a second report has been submitted that states in the opinion of OH the symptoms have existed since March 2009. Should I be covered under the DDA?

Legal advice:

Martin Brewer, partner, Mills & Reeve

In order to be covered by the DDA you must be disabled within the meaning of the Act. The definition of disabled in the DDA is a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.  In this context, long-term means has lasted for or is likely to last for 12 months or more. Depression is certainly a ‘mental impairment’ which is capable of being a disability. However, being depressed is not, in and of itself, a disability for the purposes of the DDA. Even if symptoms of depression have existed for over 12 months the question is not ‘how long has the impairment lasted’, rather it is ‘how long has the adverse effect on your ability to carry out normal day to day activities lasted’ which is an entirely different question. A person can have a physical or mental impairment which has no adverse effect on his or her normal day-to-day activities.
 
In your case it’s simply not clear what is meant by ‘delivering a reliable service’, nor why OH reached that conclusion. The employer would be well advised to seek clarification on that, since if you are disabled, they have a duty to consider reasonable adjustments to mitigate the effects of your disability on your ability to work.
 

Martin Brewer can be contacted at martin.brewer@mills-reeve.com. For further information, please visit Mills & Reeve.

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Esther Smith, partner, Thomas Eggar

The issue of whether an employee’s physical or mental health condition is covered by the Disability Discrimination Act 1995 depends on two main factors: the impact that their condition has on their day to day activities (ignoring the counter effects of any medication prescribed for that condition) and the longevity or expected longevity of that condition.

If your depression has a significant impact on your ability to carry out day to day activities and either has lasted a year, or is likely to last for a year or more, then you will be covered. Given that you appear to have suffered from the condition since March 2009 and there does not appear to be a suggestion from what you say that you are not likely to suffer from it going forward, then I believe you would be covered.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.