2. See J Reid and S Baker Not Just Sticks and Stones: A Survey of the Stigma, Taboos and Discrimination Experienced by People with Mental Health Problems (London: MIND, 1996).

3. There are a huge variety of medically recognised mental illnesses and neurological disorders including, for example, depression, dementia, learning difficulties, alcoholism, drug abuse and epilepsy. See The World Health Organization's International Classification of Mental and Behavioural Disorders 1994 or the American Diagnostic and Statistical Manual of Mental Disorder 1994.

4. World Health Report 2001: Mental Health: New Understanding, New Hope (Geneva: World Health Organization, 2001).

5. World Health Report, above n 4; and see M Rice ‘Breaking the Silence’, Observer Magazine, 21 October 2001, p 57.

6. World Health Report, above n 4.

7. P Graham, A Jordan and B Lamb An Equal Chance or No Chance (London: Spastic Society, 1990), cited in C Barnes, G Mercer and T Shakespeare Exploring Disability: A Sociological Introduction (Cambridge: Polity Press, 1999) p 113.

8. Department of Health ‘Mind Out for Mental Health’ Poll (2001), commissioned by the Department of Health in association with the Mental Health Foundation, MIND and the National Schizophrenic Fellowship - for details see http://www.mind.org.uk/press-room.

9. 565 HL Official Report (5th series) col 697, 27 June 1995, cited in C Palmer, G Moon and S Cox Discrimination at Work: The Law on Sex, Race and Disability Discrimination (London: Legal Action Group, 3rd edn, 1997) p 472. See also, B Doyle Disability, Discrimination and Equal Opportunities (London: Mansell, 1995) ch 5.

10. For an interesting account of the creation, nature and development of the disabled people's movement in the UK see J Campbell and M Oliver Disability Politics: Understanding Our Past, Changing Our Future (London: Routledge, 1996).

11. It was the fourteenth private members' bill since 1982.

12. See further Barnes, Mercer and Shakespeare, above n 7, p 162.

13. Special Educational Needs and Disability Act 2001, which makes it unlawful to discriminate against disabled people seeking access to education.

14. Directive 2000/78/EC, OJ 2000 L 303, enacted by the Disability Discrimination Act 1995 (Amendment) Regulations 2003, SI 2003/1673. This will abolish the current small employer exemption and include more occupations within the remit of the DDA and introduce the concept of direct discrimination into the legislation.

15. It has similar statutory duties as the Equal Opportunities Commission and the Commission for Racial Equality. For more detailed information about the functions and powers of the Disability Rights Commission visit the website at http://www.drc.org.uk. There are plans, outlined in the Single Equality Bill 2002, for the three bodies to be consolidated.

16. Disability Rights Task Force From Exclusion to Inclusion: A Report of the Disability Rights Task Force on Civil Rights for Disabled People (London: HMSO, 1999).

17. The Draft Disability Discrimination Bill (London: HMSO, 2003).

18. J Smith - speech at the launch of Department of Health research as part of its ‘Mind out for Mental Health’ Campaign in October 2001. See http://www.mind.org.uk/press-room.

19. See, for example, T Blair ‘New Policies for a New Country’, Independent, 21 September 1998.

20. The Draft Disability Discrimination Bill, above n 17, p 7.

21. See further, R Drake ‘Disabled people, New Labour, benefits and work’ (2000) 20 Critical Social Policy 421.

22. Statistics suggest that disabled people are three times more likely to be unemployed and stay unemployed for longer periods than able-bodied counterparts (see Barnes, Mercer and Shakespeare, above n 7, p 110).

23. Department of Social Security ‘Herman Announces Extra Safeguards for Disabled Benefit Claimants’, Press Release 98/027, 9 February 1998.

24. The Fraud Act 1997.

25. The term ‘rationality mistake’ is used by Duncan and Barlow in relation to the underlying assumptions in the 1998 Green Paper Supporting Families: A Barlow and S Duncan ‘Supporting families? New Labour's Communitarianism and the “Rationality Mistake”: Part I’ (2000) 22 J Social Welfare and Fam L 23. See also A Barlow, S Duncan and G James ‘New Labour, the Rationality Mistake and Family Policy in Britain’ in A Carling, R Edwards and S Duncan (eds) Analysing Families: Morality and Rationality in Policy and Practice (London: Routledge, 2002) pp 110–128.

26. Barlow and Duncan, above n 25, al 23.

27. Who are often perceived as ‘unfortunate, useless, different, oppressed and sick’: See P Hunt Stigma: The Experience of Disability (London: Geoffrey Chapman, 1966) p 146, cited in Barnes, Mercer and Shakespeare, above n 7, p 77.

28. These include inaccessible buildings, poor work procedures, poor transport and a general over-emphasis on the type of skills that disabled people are less likely to have, and are, thus part of the wider barriers that hamper disabled people's meaningful inclusion into mainstream society (see Barnes, Mercer and Shakespeare, above n 7, c h 5).

29. Disability Discrimination Act 1995 (Amendment) Regulations 2003, SI 2003, SI 2003/673(the 2003 Regulations).

30. See G Pitt Employment Law (London: Sweet & Maxwell, 2000) p 64. In addition, under the DDA employees of associated companies do not count towards the total (see Hardie v CD Northern Ltd [2000] IRLR 87).

31. Foreword to the Draft Disability Discrimination Bill, above n 17.

32. The 2003 Regulations, above n 29, do not repeal this section but will add a new definition of direct discrimination, which cannot be justified (s 3A(5)) and include a new definition of harassment (s 3B).

33. The obligation to make reasonable adjustments currently applies to arrangements and physical features of the workplace but the 2003 Regulations, above n 29, apply the obligation to ‘a provision, criterion or practice applied by or on behalf of an employee’ (s 4A).

34. But note that from October 2004 the ability to justify non-compliance with this duty will be removed, although employers will still be able to claim that the duty to make an adjustment is not reasonable (see below at p 530).

35. The provisions are expanded upon in Sch 1 to the Act, the Disability Discrimination (Meaning of Disability) Regulations 1996, SI 1996/1455 and Government Guidance on the definition - Department of Education and Employment and Social Security Guidance on matters to be taken into account in determining questions relating to the definition of disability (London: HMSO, 1996) and the Code of Practice for The elimination of discrimination in the field of employment against disabled persons or persons who have had a disability (London: HMSO, 1996).

36. [2002] IRLR 263. For comment see B Barrett ‘Clarification of Employer's Liability for Work-related Stress’ (2002) 31 IJL 285.

37. N Meager, B Doyle, C Evans et al Monitoring the Disability Discrimination Act (DDA) 1995 (Nottingham: Department for Education and Employment Research Report RR119, 1999).

38. DDA 1995, Sch 1, para 1.

39. HC Deb Standing Com E, col 71.

40. The burden of proving that he or she is ‘disabled’ is, of course, on the applicant.

41. [1999] IRLR 4, EAT. See also Clark v IDG Ltd t/a Novacold [1999] IRLR 3 18, CA.

42. [1999] IRLR 680, EAT.

43. Above n 35.

44. [1999] IRLR 680 at [19], EAT.

45. [2001] IRLR 644, EA

46. [2001] IRLR 644 at [1], EAT.

47. [2001] IRLR 644, CA.

48. See G James ‘The Meaning of Disability: Physical and Mental Impairment’ (2002) 31 IJL 156; and M Rubenstein (editorial) in Industrial Relations Law Reports (2001) p 643.

49. [2002] IRLR 190, EAT.

50. [2002] IRLR 190 at [15], EAT.

51. [2002] IRLR 190 at [20], EAT. Such an approach may well explain why half of all cases heard at tribunals during the first 18 months where the applicant claimed to be suffering from ‘depression or anxiety’ failed (see Meager, Doyle, Evans et al, above n 37, p 126).

52. [2002] IRLR 190 at [9], EAT.

53. [2002] IRLR 190 at [9], EAT.

54. It also, as Rubenstein comments, ‘overlooks the range of mental impairments relating to mental functioning, such as learning disabilities, which cannot be regarded as an illness’ (M Rubenstein (editorial) in Industrial Relations Law Reports (2002) p 167).

55. [2002] IRLR 190 at [20], EAT.

56. [2002] Case 702/00, EAT, [2003] IRLR 11 1, CA.

57. [2002] Case 702/00 at [8], EAT.

58. [2000] IRLR 14, CA.

59. [2002] Case 702/00 at [17], EAT.

60. [2003] IRLR III at [13], CA.

61. Employment Tribunal Service Annual Report and Accounts 2002–2003, available at http://www.ets.gov.uk/generalinfo.htm.

62. For example, scientists fail to agree whether ME is a physical illness or ‘a disease of the mind’: see J Burne ‘Battle Fatigue’, Guardian, 30 March 2002; and the discussion in O'Neil v Symms & Co Ltd [1998] IRLR 233, EAT (where ME was classified as ‘clinically well-recognised’).

63. Donovan Report Trade Unions and Employers' Associations: Report of a Royal Commission Cmnd 3623 (Chairman, Lord Donovan) (London: HMSO, 1968).

64. G H Brundtland, speech at the launch of the ‘World Health Report 2001’, above n 4, 4 October 2001, available online at http://www.who.int/whr/2001/main/en/media/DG-speech.htm.

65. S Gabel ‘Depressed and disabled: some discursive problems with mental illness’ in M Corker and S French (eds) Disability Discourse (Buckingham: Open University Press, 1999) p 40.

66. Barnes, Mercer and Shakespeare, above n 7, p 67.

67. Rubenstein, above n 48, p 643.

68. [2002] IRLR 185, EAT.

69. [2002] IRLR 185 at [32], EAT.

70. Government Guidance, above n 35.

71. DDA 1995, Sch 1, para 6.

72. Government Guidance, above n 35.

73. [2001] IRLR 23, EAT.

74. [2001] IRLR 23 at [21], EAT.

75. [2000] IRLR 699, CA.

76. For many, the idea of labelling themselves as ‘disabled’ is problematic enough. See further, N Wilson ‘Well, I know this is going to sound very strange to you, but I don't see myself as a disabled person’ (2002) 17 Disability and Society 509 and S Tierney ‘A reluctance to be defined” disabled’: How can the social model of disability enhance understanding of anorexia (2001) 16 Disability and Society 749.

77. See DDA 1995, Sch 1, para 6 and Government Guidance, above n 35, A11–A14

78. [2002] Case 702/00 at [21], EAT.

79. It also reflects the general rule that it is the effect of a person's impairment without the medical treatment or any aids, which he or she may be using to correct it, is what has to be assessed at this initial definitional stage. See also Leonard v Southern Derbyshire Chamber of Commerce [2001] IRLR 19, EAT; Vicary v British Telecommunications plc [1999] IRLR 680, EAT and Law Hospital NHS Trust v Rush [2000] Case 842/99, EAT.

80. [1999] IRLR 4 at [36], EAT.

81. [2001] Case 1044/00, EAT.

82. Here the activity in question was placing rollers in hair, but see also the tribunal decision in Vicary v British Telecommunications plc [1999] IRLR 680, EAT.

83. DDA 1996, Sch 1.

84. S Deakin and G Morris Labour Law (London: Butterworths, 3rd edn, 2001) p 658.

85. Reid and Baker, above n 2.

86. Note also that an acceptable justification under one head of discrimination does not preclude a finding against the employer under the other; so if an employer is able to justify as 5 discriminatory act it may still be liable for failing to make reasonable adjustments (s 6) (see Clark v TDG Ltd t/a Novacold [1999] IRLR 318, CA). Note also that the 2003 Regulations, above n 29, will add the concept of direct discrimination to the DDA, which cannot be justified.

87. 2003 Regulations, above n 29.

88. Above, n 35.

89. Above, n 35, para 4.9.

90. Above, n 35, para 4.6.

91. [2001] IRLR 67, CA.

92. [2001] IRLR 67 at [25], CA.

93. [2001] IRLR 67 at [37], CA.

94. [2001] IRLR 67 at [39], CA.

95. [2001] IRLR 67 at [28], CA.

96. [1998] IRLR 233, EAT. O'Neill drew on the case law applicable in pregnancy-related dismissals where lack of knowledge of the pregnancy can defeat a claim (for example, Del Monte Foods Ltd v Munro [1980] IRLR 224, EAT), but a different line has been taken in the later cases - see London Borough of Hammersmith and Fulham v Farnsworth [2000] IRLR 691, EAT; Heinz v Kenrick [2000] IRLR 144, EAT; and Quinn v Schwarzkopf [2002] IRLR 602, Ct of Sess.

97. [2000] IRLR 144, EAT.

98. [2000] IRLR 144 at [26], EAT. See also Clark v IDG Ltd t/a Novacold [1999] IRLR 318, CA; London Borough of Hammersmith and Fulham v Farnsworth [2000] IRLR 691, EAT; and Quinn v Schwarzkopf [2001] IRLR 67, EAT.

99. [2000] IRLR 144 at [22], EAT.

100. [2000] IRLR 144 at [27], EAT. See also London Borough of Hammersmith and Fulham v Farnsworth [2000] IRLR 691, EAT where it was held that both respondents knew or ‘should have known upon making proper enquiries’ of the disability (at[12])

101. Although see the judgment of Lord Johnson in the EAT decision in Quinn v Schwarzkopf [2001] IRLR 67, EAT. Lord Johnston cast doubt on the implications of knowledge at this point stating that ‘the legislation contemplates attempts by employers on a hypothetical basis to justify an act subsequently held to be discriminatory which they did not at the time consider to be such, because they were unaware of the existence of the disability’ (at [12]).

102. [2002] IRLR 602, Ct of Sess.

103. [2002] IRLR 602 at [10], Ct of Sess.

104. See, for example, Wilson, above n 76; and Tierney, above n 76.

105. C Gooding ‘Disability Discrimination Act: From Statute to Practice’ (2000) 20 Critical Social Policy 540; and The Spastic Society An Equal Chance for Disabled People?(London: Spastics Society, 1986).

106. Rice, above n 5, p 57.

107. [2000] IRLR 691.

108. Yet studies in Britain and the US suggest that disabled employees do not have higher absenteeism records or perform at a lower level (Barnes, Mercer and Shakespeare, above n 7, p 113).

109. ‘Interpreting the DDA’ (2001) 98 Equal Opportunities Review 17.

110. Note that the 2003 Regulations, above n 29, change this to ‘a provision, criterion or practice applied by or on behalf of an employee’ (s 4A).

111. [1999] IRLR 76, EAT.

112. Mulligan v Comr for Inland Revenue [1999] Case 691/99, EAT.

113. Employment Tribunal decision in Tiquin v Abbey National plc [1999] Case 24009471/98.

114. Above n 35.

115. Ridout v TC Group [1998] IRLR 628, EAT.

116. [1998] IRLR 628 at [25], EAT.

117. [1998] IRLR 352, EAT.

118. This includes an examination of the extent to which the adjustment would actually help the individual overcome the medical symptoms (Fu v London Borough of Camden [2001] IRLR 186, EAT).

119. And even then, the more ‘common’ and ‘acceptable’ the physical illnesses are better protected than those that will require a special effort on the part of the employer, as was the case in Kenny v Hampshire Constabulary [1999] IRLR 76, EAT and Ridout v TC Group [1998] IRLR 628, EAT.

120. Rice, above n 5.

121. See C Gooding ‘Employment and Disabled People: Equal Rights or Positive Action’ in G Zarb (ed) Removing Disabling Barriers (London: Policy Studies Institute, 1995). Also, as stated earlier, civil actions for breach of duty of care in no way compensate for this flaw in the DDA. See Sutherland v Hatton [2002] RLR 263 which held that employers can assume that the normal pressures of a job are within the employee's capabilities unless the psychiatric illness is foreseeable (or the employer is aware that the employee has a history of psychiatric illness: see also Young v Post Office [2002] IRLR 660, CA), and there is no duty to foresee any illness that would not be obvious to the ‘reasonable employer’. See further, B Barrett ‘Clarification of Employer's Liability for Work-related Stress’ (2002) 31 IJL 285. It is also interesting that, since the decision in Sutherland v Hatton, the TUC have encouraged members to complain about ‘bullying, overwork, inadequate training and unrealistic deadlines on record’ so that, if a stress-related illness occurs he or she has adequate evidence to bring an action (C Dyer ‘Judges Curb Stress Cases’, Guardian, 6 February 2002), but how realistic is this in practice?

122. The new definition under the 2003 Regulations, above n 29, does not remedy this flaw and it is interesting that the recent Draft Disability Discrimination Bill, above n 17, highlights the removal of physical barriers faced by disabled people, such as access to public transport, reflecting once again that current anti-discrimination legislation in this area is prima facie viewed as a battle against physical barriers.

123. Employment Rights Act 1996, Pt 8, as amended; the Flexible Working (Procedural Requirements) Regulations 2002, SI 2002/3207; and the Flexible Working (Eligibility, Complaints and Remedies) Regulations 2003, SI 2003/3236. The right is available (since 6 April 2003) to parents of children aged under 6 or of disabled children under 18.

124. Gabel, above n 65, p 38.

125. Brundtland, above n 64.

126. Evidenced too in the fact that the Disability Discrimination (Meaning of Disability) Regulations 1996, above n 35, specifically exclude certain socially unacceptable illnesses from the remit of the DDA.

127. M Oliver Understanding Disability (London: Macmillan, 1996).

128. In relation to ‘othering’ and disability, B Hughes provides an interesting account of how Bauman's ‘sociology of the stranger’ relates to disabilities in general (B Hughes ‘Bauman's Strangers: impairment and the invalidation of disabled people in modern and post-modern cultures’ (2002) 17 Disability and Society 571). See also, P Abberley ‘Work, Utopia and Impairment’ in L Barton (ed) Disability and Society: Emerging Issues and Insights (London: Longman, 1996).

129. D Van Houten and C Bellemakers ‘Equal Citizenship for All. Disability Policies in the Netherlands: Empowerment of Marginals’ (2002) 17 Disability and Society 171.

130. 2000/43/EC, OJ 2000 L 303/16 and see above n 29.

130. Above n 17.

131. A full copy of Single Equality Bill is available at http://www.odysseustrust.org, which gives effect to the main recommendations of the Cambridge Centre for Public Law's Report, Equality: A New Framework, The Report of the Independent Review on the Enforcement of UK anti-discrimination legislation (London: Hart, 2000).

132. Drake, above n 21.

133. Drake, above n 21, at 422.

134. Gabel, above n 65, p 39.

135. Department of Health, above n 8.

136. Such as Health and Safety Executive ‘Tackling Work-Related Stress: A Manager's Guide to Improving and Maintaining Employee Health and Well-Being’ (London: HSE, 2001) which notes that employers ought to evaluate stress when carrying out a risk assessment under the Management of Health and Safety at Work Regulations 1999, SI 1999/3242.

137. TUC ‘No rise for union legal cases but stress cases soar’, Press Release, 2 February 2002.

139. S Bruyere ‘Managing Disability in the Workplace’ (2000) 92 Equal Opportunities Review 26.

140. Meager, Doyle, Evans et al, above n 37, p 207.

141. Including protection form discrimination on the basis of age, religion, nationality and sexual orientation (see Directive 2000/78/EC, OJ 2000 L 303/16 (Framework Directive)).