Defining disability and determining whether an individual is disabled can often create problems for an employer and, indeed, an Employment Tribunal. The starting point is the Equality Act 2010, which contains a broad definition of what will constitute a disability at section 6:
“(1) A person (P) has a disability if—
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”
In addition, the act sets out in Schedule 1, Part 1 what factors should be considered when attempting to determine whether or not a person is disabled.
8 (1) This paragraph applies to a person (P) if—
(a) P has a progressive condition,
(b) as a result of that condition P has an impairment which has (or had) an effect on P’s ability to carry out normal day-to-day activities, but
(c) the effect is not (or was not) a substantial adverse effect.
(2) P is to be taken to have an impairment which has a substantial adverse effect if the condition is likely to result in P having such an impairment.
(3) Regulations may make provision for a condition of a prescribed description to be treated as being, or as not being, progressive.”
The recent case of P Taylor v Ladbrokes Betting & Gaming Ltd dealt with the issue of defining disability and what should be included for the purposes of the act. This article looks at the circumstances of this case, the ruling at appeal and the likely effect of this on defining disability in the future.
Unfair dismissal and disability discrimination
The claimant, Mr Taylor, suffered from type 2 diabetes, which he controlled using medication. He brought a claim against his employer for unfair dismissal and disability discrimination.
Employment Judge Gaskell, hearing the case, came to the conclusion that the claimant was not disabled for the purposes of the act, on the basis of two medical reports. The medical expert had opined that Mr Taylor’s condition could be easily controlled and would not impact on his ability to carry out normal day to day activities.
In coming to the ruling, the employment judge specifically considered Schedule 1, Paragraph 8 above in relation to progressive conditions and concluded that there was only a small possibility of the claimant’s condition progressing, particularly if he were to follow medical advice on managing his lifestyle.
The claimant appealed the ruling on the basis that the employment judge had erred in this conclusion and in considering the provision of the act.
The claimant’s appeal was allowed and the case was sent back to the Employment Tribunal for a rehearing. In allowing the appeal, His Honour Judge Hand QC said that the findings were not supported by the medical evidence and that the issue of whether the claimant was suffering from a progressive condition as set out by the act needed to be reconsidered.
In coming to this conclusion, the HHJ Hand considered that EJ Gaskell had erred by only considering the progression of the claimant’s condition within a set time period in the past and had not considered the likely progression of his condition in the future, because of the lack of available medical evidence.
Overall, he found that more evidence was needed from the medical expert in relation to the likely future effect of the claimant’s condition and, thus, whether it could be considered as a disability for the purposes of the act.
In allowing this appeal, the judge reinforced that a condition should not be limited to how it progresses within a particular period in the past. This case therefore highlights the importance of obtaining relevant and detailed medical evidence when determining whether someone is disabled for the purposes of the act. Key questions need to be asked of any medical expert providing evidence about the likely progression and long-term effect of the condition in question, so that the impairment to the individual can be accurately assessed.
The case will now return to the Employment Tribunal to be heard by EJ Gaskell and it will be interesting to see how the ruling differs. Watch this space!
For more information on defining disability in the workplace or on any of the other issues raised in this article, contact our Employment Law team or call 0117 904 6000.