EAT clarification on what amounts to a disability

The EAT (Employment Appeals Tribunal) has today given judgment in the case of Edmund Nuttall Limited v Butterfield, and given useful guidance on what constitutes a disability under the Disability Discrimination Act 1995. The case concerned the definition of disability in the Disability Discrimination (Meaning of Disability) Regulations 1996 (the "1996 Regulations"). The 1996 Regulations state an employee will not be taken to be disabled for the purposes of the Disability Discrimination Act 1995 if he suffers from "a tendency to…sexual abuse of other persons" or "exhibitionism".

The EAT previously considered the scope of the 1996 Regulations in Murray v Newham CAB [2003]. In that case it ruled that where an exempted condition (in this case a tendency to physical abuse) was not freestanding but arose from a non-exempted condition (in this case paranoid schizophrenia) the employee was still protected by the 1995 Act.

In Edmund Nuttall v Butterfield, the employment tribunal found that the Claimant's offences of indecent exposure (for which he had been convicted in the Crown Court) were caused by his underlying depression and applying Murray ruled he was still protected and as such his dismissal resulting from those offences was disability discrimination.

The EAT did not find the concept of a "free standing" condition as set out in Murray helpful. Instead they held that the critical question is one of causation. What was the reason for the less favourable treatment, here the dismissal of the Claimant? If the reason was the legally recognised disability, then there was prima facie disability discrimination. However, if the reason was the excluded condition and not the underlying disability, then there was no disability discrimination.

On the facts of this particular case the EAT found that the sole reason for dismissal was the excluded condition, not the legally recognised disability. In making this finding they pointed to the fact that when the Employer had learned of Mr Butterfield's depression but thought that he had simply been disqualified from driving the Employer was content for him to continue working subject to reasonable adjustments being made. It was only when the Employer learnt that Mr Butterfield had been convicted of offences of indecent exposure that it took the decision to dismiss.

CMS Cameron McKenna LLP acted in the case for the successful employer.