Veitch Penny LLP - Exeter | Crediton, Devon

Case

Power v Panasonic UK Limited - Employment Appeal Tribunal (March 2003)

Issues

(1) Disability Discrimination
(2) Meaning of “disability”
(3) Exclusions and exceptions

Facts

From January 1991 until November 1998, Annette Power was an area sales manager for fax machines, sales and service for Panasonic. Following a reorganisation in 1997, Panasonic reduced the number of area sales managers from seven to four, and as a result the geographical area she was expected to cover increased. Shortly afterwards, in October 1997, she was signed off sick. Ms Power remained off work until she was summarily dismissed in November 1998. A complaint was made to the Employment Tribunal on the basis that she had been unfairly dismissed, that she had been discriminated against contrary to the Disability Discrimination Act (“the DDA”) and that Panasonic were in breach of her contract.

The Tribunal heard from consultant psychiatrists on behalf of each party. It was not disputed that during her period off work, Ms Power had become depressed and had drank heavily. Both experts tried to identify which came first, the depression or the alcohol abuse.

The Tribunal unanimously held that Ms Power had been unable to show that she was a “disabled person” for the purposes of the Act, despite providing psychiatric evidence that she was depressed. The Tribunal stated that it had applied Reg. 3(1) of the Meaning of Disability Regulations 1996, which provides that “addiction to alcohol, nicotine or any other substance is to be treated as not amounting to an impairment for the purposes of the Act.” The majority of the tribunal felt that this Regulation should be given greater weight than the Secretary of State’s Guidance on “matters to be taken into account in determining questions relating to the definition of disability”, which indicated “it is not necessary to consider how an impairment was caused, even if the cause is a consequence of a condition which is excluded. For example, liver disease as a result of alcohol dependency would count as an impairment.” In short, the Tribunal was not satisfied that Ms Power’s depression was not a symptom or manifestation of alcohol addition.

Ms Power then appealed the Tribunal’s decision. It was argued that the Tribunal had been incorrect in stating that the central issue was whether Ms Power had become clinically depressed and then turn to drink, or whether events had led to her alcohol addiction, which then produced depression.

Decision

The Employment Appeal Tribunal allowed the appeal and remitted the case for rehearing.

It was found that the original tribunal had been incorrect in finding that Ms Power had failed to show that she was disabled within the meaning of the DDA. The Tribunal had not considered whether her depression had a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities, as per the Act, instead concentrating upon whether alcoholism caused her depression, so that her situation fell within the scope of the Meaning of Disability Regulations 1996. These Regulations provide that “addiction to alcohol... is to be treated as not amounting to an impairment for the purposes of the Act.”

Comments

In order to determine whether a person has a disability within the meaning of the Act, there is no need for the Tribunal to consider how the impairment was caused. What is relevant is whether the disability they have at the time is a disability within the meaning of the Act or, where relevant, whether it is excluded by the Regulations. The Appeal Tribunal found that there was no conflict in this respect between the Regulations and the Guidance on matters to be taken into account in determining questions relating to the definition of disability. Indeed, both the regulations and the guidance were introduced pursuant to enabling the provisions of the DDA. This case confirms the principle that the DDA distinguishes between excluded conditions such as alcohol dependency, and impairments which result from that excluded condition, such as depression.