The statutory definition of “disability” must be satisfied for an employee suffering from a mental illness to be able to bring a discrimination claim. It reads “A Person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”.
Thus the answer is that, although the illness may have a substantial effect on the person’s ability to carry out day-to-day activities, it will not satisfy the test if it is not long-term. Therefore, it is important always to have an assessment of the effect, severity, and length of the illness with the assistance of medical evidence. In decided cases Asperger’s syndrome, ME and chronic fatigue syndrome have all been held to be capable of being mental and/or physical impairments. The burden of proving they have a disability is on the employee Claimant.
If, as an employee or employer you have any concerns in this often complex area, please feel free to contact our Employment Specialist, Geoff Lamb for further advice.
