The law on disability discrimination can, at times, be tricky to navigate.
Even the basic question of what counts as a disability is not always straightforward. The starting point is the statutory definition: a person has a disability if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
A recent Employment Appeal Tribunal (EAT) decision is a useful reminder of what the definition of “substantial” means in practice.
It may seem that the most difficult hurdle to overcome will be showing the health condition or impairment is “substantial” in nature. However, the legislation defines substantial as “more than minor or trivial“. To assist with understanding the legislation, there are two main sources of information which expand on this definition: the extra-statutory guidance and the Equality Act 2010 Code of Practice. The EAT took the view that whether a disability is substantial can often be found by a simple reading of the words “more than minor or trivial”. Whilst account should be taken of the wording of the Code and the Guidance, the statutory test will always take precedence when there are inconsistencies between the sources, particularly where those sources only seem to add unnecessary complexity.
Another crucial part of the definition of disability is “activities”. It may be tempting for employers to dispute an employee’s health condition by focusing on what day-to-day activities the employee can do. This may also be seen as supporting an argument that their health condition or impairment is not substantial. The EAT said this was not the correct approach. Instead, the focus should be on what the employee cannot do, or can only do with difficulty. The question to ask is how capable an employee with an impairment is at carrying out day-to-day activities. Employers and tribunals should be wary of conducting a balancing exercise when answering this question, and should not compare the employee to the population at large.
Moreover, even if an employee has a coping or avoidance strategy to manage day-to-day activities, it will not prevent their impairment from being classed as substantial. Any strategy could fail in certain circumstances – for instance, where a person is under considerable stress.
There is no spectrum either; if the effect of an impairment cannot be classified as trivial, it must – by definition – be treated as substantial.
Lawyers like to separate the test of disability into discrete parts. This is useful when conceding or disputing specific elements of the test – for instance, where a disability is substantial but is not long term. However, the components can only properly be analysed by looking at the provision, and statute, as a whole. A holistic, bird’s-eye view is necessary when considering if an employee’s health condition is substantial such that it meets the test of disability.
So what does all of this mean in practical terms? On balance, it is likely to make it more challenging for an employer to show that an employee’s impairment does not have a substantial adverse effect on their ability to carry out day-to-day activities. If your organisation finds itself at the wrong end of a disability discrimination claim and if there is any doubt as to whether an employee is actually a disabled person in law, it is worth seeking external advice from one of our employment experts who can guide you.