Most employers are aware that discrimination against disabled people in the workplace is not permitted but, unlike other characteristics protected by the equality legislation (such as race or sex), disability can be less identifiable, which can lead to the question: what is a disability, anyway?
The starting place for any answer has to be the legislation that creates disability discrimination protection. The definition in the Equality Act states that a person is disabled 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” (Section 6).
This definition inevitably raises more questions than answers and, even though the government has provided a 50-page guidance booklet, there still continues to be a vast amount of litigation over the issue. It is impossible to answer all questions regarding the definition of disability in one short article but below is an overview of common questions.
What does ‘long-term’ mean? If someone recovers from a condition, can it still be a disability?
‘Long-term’ means that the impairment lasts for (or is likely to last for) 12 months or more. Past conditions can still meet the definition but whether or not they are relevant depends on the circumstances of the case. Some people have a condition that is recurring, for example, epilepsy. The tribunal will take into account how likely the condition is to recur, to determine whether it is long term.
What are ‘normal day-to-day activities’?
The guidance tells us that ‘normal’ activities are the things that are done by people on a regular basis. This covers a wide range of activities, such as walking, driving, writing, cleaning, communicating etc. Case law explains that a tribunal should focus on what an employee cannot do rather than what they can do. It is therefore possible, as was the case in Aderemi v London & South Eastern Railway Ltd , that a person who did a lot of walking and exercise could still be classified as disabled if they were unable to stand for prolonged periods (due to severe pain from a back condition).
If employees take medication that allows them to lead perfectly normal lives, are they still classed as disabled people?
The Act and accompanying guidance make it clear that the tribunal should look at what would happen if the treatment measure(s) stopped. Treatment measures therefore include medication, pain relief, hearing aids and prosthetics, i.e. anything which treats or corrects the condition. Glasses and contact lenses are excluded (but those registered blind or partially sighted are automatically deemed to have a disability).
Is obesity a disability?
In the recent case of Walker v Sita Information Networking Computing Ltd , Mr Walker was reported as weighing approximately 21 stone. He suffered from a long list of complaints and pains but they could not be attributed to a specific cause, other than the fact that they were exacerbated by his obesity and an emotional reaction. At tribunal, the judge refused to rule he was disabled because he was focusing on the fact that there was no physical or organic cause but, on appeal, the Employment Appeal Tribunal (EAT) ruled that the judge had wrongly focused on this. The EAT was clear that obesity in itself is not a disability but it is likely to make an existing condition worse or create a disability condition (such as diabetes).
An employee has issued a claim against us. Should we admit that they are disabled?
It is a good idea to take legal advice, as this is a complex area of law. An employment solicitor will be able to review medical evidence and statements, and may find one aspect that can be disputed. If the employee is not disabled, they are not protected by the equality legislation.
On the other hand, some conditions will be obvious or a deemed disability and you should not waste the claimant’s costs in having to prove they are disabled, as their representative may state that your defence is misconceived and claim their costs from you.
The definition of disability is a highly contentious issue, and each case and condition is unique. The safest option for employers dealing with a potentially disabled employee is to treat them as such and therefore to consider, for instance, whether they need to make reasonable adjustments for disabled people in the workplace, to prevent the employee from being placed at a disadvantage.
If you have any concerns about any of the issues raised in this article or questions about one of your employees or ex-employees contact our Employment Law specialists on 0117 904 6000 for more information or advice.