Decoding disability definitions
David Clay considers a recent case which considered the legal definition of disability.
Whether an employee is disabled, as defined under the Equality Act 2010, is important to employers as it determines whether they are under an obligation to make reasonable adjustments and may also subject them to a risk of claims if an employee suffers discrimination due to a disability.
The legal definition of ‘disability’ is “a person who has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities”. ‘Long-term’ means if the effect of an impairment has lasted, or is likely to last, for at least 12 months.
In a recent disability discrimination case, a science teacher had been suffering from fibromyalgia and stress from December 2015 before resigning at the end of August 2016. As the employee had not been experiencing the symptoms for over 12 months, the most prominent issue for the Employment Tribunal (ET) was whether the effects of her fibromyalgia and stress were ‘likely to last’ for at least 12 months.
The ET found that the employee was unable to demonstrate this on the basis that the doctor had expressed hope that her symptoms might slowly improve once she left her employment.
On appeal, the Employment Appeal Tribunal (EAT) held that the ET had not applied the correct legal test, stating ‘likely’ should be interpreted as ‘could well happen’ and the assessment should have been based on the evidence available at the relevant time (the date of resignation) without the benefit of hindsight. It had also incorrectly focused on the question of diagnosis rather than the actual effects of the impairment on the individual and whether those were likely to be long-term. Accordingly, the EAT held that the approach adopted by the ET was too narrow and the case has been sent back to the ET to apply the correct legal tests to the facts.
Another key issue in this case was the meaning of ‘substantial’. The ET held that the employee had not demonstrated that her medical conditions had a ‘substantial’ effect on her ability to carry out day-to-day activities because her evidence was not precise enough. On appeal, the EAT held that this was simply incorrect and highlighted the medical evidence which had in fact detailed the effect on the employee’s ability to carry out day-to-day activities.
This case serves as a reminder that employers should be wary of adopting a narrow approach to whether an employee may be considered disabled within the meaning given in the Equality Act 2010. Bearing in mind that there is no statutory cap on the compensation which may be awarded in a successful discrimination claim, we recommend clients seek advice at an early stage when dealing with an employee who could potentially be considered disabled.