When can a long-term impairment be deemed a disability?

The Equality Act 2010 sets out that an employee will be disabled if they have a long-term impairment which has a substantial adverse effect on their ability to carry out their day-to-day activities. The impairment may be physical or mental.

A recent tribunal appeal has set out three legal principles that need to be considered when assessing whether the adverse effect is substantial.

The appeal set out the principles after a tribunal had initially ruled that a job applicant who applied for a role with Haven Leisure had not experienced disability discrimination when he was rejected for the post as it found he was not disabled. The job applicant had a diagnosis of autism spectrum disorder (ASD) and ADHD.

The tribunal accepted that the applicant had a mental health condition but did not find that the impairment had a “substantial impact on his day-to-day activities”.

The job applicant appealed the outcome.

The Employment Appeal Tribunal (EAT) determined the following three legal principles that need to be considered when assessing whether the adverse effect is substantial:

1. The impact of the adverse effect should be assessed by comparing the claimant’s current abilities with their “hypothetical abilities” should they not have an impairment. There should not be a comparison with the ability of others.

2. It will be sufficient if the employee experiences a substantial adverse effect on their ability to carry out just one day-to-day activity.

3. Employers should not assess the ability to carry out “different activities” instead they should focus on the employee’s capacity to carry out “day-to-day” activities.

Learning for employers

• Employers need to identify what an employee cannot do because of their impairment rather than focusing on what the employee can do or comparing it to what someone without the impairment can do.

• Always take a medical diagnosis into account. Use information about the diagnosis to assess whether the impairment has a substantial adverse effect on the employees ability to perform normal day to day activities.

Source: Gavin Parrot