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Disabled or not disabled? That is the question

What amounts to a disability under the Equality Act?

You are deemed “disabled” under the Equality Act 2010 if you have a physical or mental impairment which has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities. Unfortunately, judging by recent case law, it would seem that this definition yields more questions than it does answers.

The Equality Act is clear with regards to certain specific medical conditions and whether they amount to a disability. For example, a person who has cancer, HIV infection or multiple sclerosis is deemed a disabled person, protected by the Act from the point of diagnosis. Certain other conditions, in contrast, are not regarded as impairments for the purposes of the Act, such as alcoholism or hayfever, except where they aggravate the effect of another condition which meets the criteria.

Although the Equality Act’s definition of what constitutes a disability may initially appear user friendly, there have been many recent cases exploring whether certain impairments meet the definition’s criteria.

These cases may inspire employers to put up a fight at the outset about whether an employee’s medical condition falls within the definition. If not the whole case falls away for the employee and employers may feel that they have little lose by taking this early point at a separate hearing. An employer’s pockets are deeper than an employee’s of course when it comes to legal fees and since Tribunal fees have come in, the playing field has become even less level.

Does recent case law help us?

In Herry v Dudley Metropolitan Borough Council, it was found that long-term stress did not amount to a disability. It was agreed by both parties that issues in the workplace were the cause of Mr Herry’s alleged stress but that he was otherwise fine to pursue his life and hobbies outside of work. The Employment Tribunal found that the Claimant’s stress was largely a result of his unhappiness about what he perceived to be unfair treatment and there was little or no evidence that his stress had any effect on his ability to carry out his normal activities.

The recent case of Taylor v Ladbrokes Betting & Gaming Ltd considered whether type 2 diabetes amounted to a disability. At an early hearing, it was held that Mr Taylor’s type 2 diabetes did not amount to a disability as it was not found to have a substantially adverse effect on his normal day-to-day activities. However, on appeal, it was found that type 2 diabetes was a progressive condition and, therefore, would amount to a disability, whether or not there was a substantially adverse effect at the time, as long as the condition was likely to have a substantially adverse effect in the future.

What are day to day activities?

Employers can sometimes be caught out by assuming “normal day-to-day activities” mean only those which would affect general non-work lifestyle, in other words, activities that the average employee would need to do such as cleaning, shopping and travel.

The case of Banaszczyk v Booker Ltd found that lifting a heavy load of 25kg amounted to a normal day-to-day activity. Whilst Mr Banaszczyk, who had been employed as a distribution centre picker, was able to go shopping, clean ground floor widows and take short haul flights, he had a back condition which meant it was difficult for him to meet his hourly target “pick rate”. The rationale for the decision was that a number of manual labourers in the UK would be expected to carry out a similar task and that the time taken to carry out the activity was the issue in these circumstances.

Therefore to be a disability under the Equality Act, the condition itself should have a direct substantial adverse effect on the ability to carry out the activities. But the substantial adverse effect can be a future one. Also, the activity in question does not necessarily have be an activity that the entire working population would normally take part in.

What should employers do if unsure?

For many employers, the ambiguity of what constitutes a disability may cause them concern when faced with a physically or mentally impaired employee. Employers need to tread carefully and consider making reasonable adjustments where possible for any employee who they consider may benefit from the protection of the Equality Act. Employers should be proactive about understanding an employee’s disability. Asking an employee to attend an occupational health examination is usually a sensible starting point, with the emphasis on starting point. It is important that employers then follow through on the advice of medical experts and make reasonable adjustments for employees where recommended.