equality act definition

DEFINITION OF DISABILITY UNDER THE EQUALITY ACT 2010

The Equality Act 2010 doesn't apply to Northern Ireland

You’re disabled under The Equality Act 2010 if you have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities.

WHAT COUNTS AS "DISABLED"?

The Equality Act 2010 defines someone as disabled if they have a “physical or mental impairment” that has a “substantial and long-term adverse effect” on their ability to carry out “normal day-to-day activities” (section 6 and schedule 1, Equality Act 2010).

Some employers will accept that an individual is disabled without the need to provide evidence, but if there is a dispute about whether someone is disabled, that person will need to show that they have a disability by addressing each aspect of the statutory definition.

Disability as defined by the Equality Act 2010 is not necessarily a permanent condition, and it could be that someone who has been off sick for several months because of an illness or injury could meet this definition even if they are expected to make a full recovery.

This would be the case if the impairment was likely to last at least a year in total.

There are examples of how the definition applies in the statutory Guidance on matters to be taken into account in determining questions relating to the definition of disability and the Equality and Human Rights Commission (EHRC) Equality Act 2010 Code of Practice.

Employment tribunals are required to take account of these where they are relevant but the statutory definition in the Equality Act 2010 always takes precedence.

It was established some time ago in the case of Goodwin v Patent Office [1999] ICR 302 that a tribunal must consider four separate questions when deciding whether an individual is disabled according to the statutory definition.

This was confirmed recently by the Employment Appeal Tribunal (EAT) in the case of Elliott v Dorset County Council UKEAT/0197/20/LA.

They are:

Does the claimant have a physical or mental impairment?
Does it affect their ability to carry out normal day-today activities and, if so, does it have an adverse effect?
Is the adverse effect substantial?
Is the substantial adverse effect long-term?

These components often overlap and the EAT has stressed the importance of maintaining an overview and to consider each question in relation to the definition as a whole

HOW THE LAW DEFINES AN INDIVIDUAL AS DISABLED

PHYSICAL or MENTAL IMPAIRMENT

There are a few conditions that are automatically deemed to be a disability.

These are:

Cancer;
HIV;
Multiple Sclerosis;
Being certified as blind, severely sight impaired, sight impaired or partially sighted by a consultant ophthalmologist; and
Severe disfigurement (excluding tattoos and body piercings): severity is tested by the individual’s explanation of how it affects them

There are also some conditions that are specifically ruled out as being disabilities. These are:

Alcohol or drug dependency, unless medically prescribed;
Hay fever;
A tendency to set fires;
A tendency to steal;
A tendency to physical or sexual abuse of other people;
Exhibitionism; and
voyeurism.

However, someone can be disabled if they have another condition that amounts to a disability even if it causes, or is caused by one of the excluded conditions.

For example, liver disease or depression can be a disability even if it results from alcohol dependency (Hutchinson 3G v Mason [2003] UKEAT/0369/03).

Other than these specifically named disabilities and exclusions, there is no definitive list of what amounts to a disability.

It is up to the individual to demonstrate that their condition has a substantial adverse effect on their day-to-day activities.

The physical or mental impairment does not need to have a specific diagnosis or cause, and it is not necessary to specify whether it is physical or mental in nature.

The statutory Guidance on matters to be taken into account in determining questions relating to the definition of disability (the Guidance) notes that impairments can be: sensory impairments, such as those affecting sight or hearing; impairments with fluctuating or recurring effects such as rheumatoid arthritis, myalgic encephalitis (ME), chronic fatigue syndrome (CFS), fibromyalgia, depression and epilepsy;

Progressive, such as motor neurone disease, muscular dystrophy, and forms of dementia;auto-immune conditions such as systemic lupus erythematosus (SLE);

Organ specific, including respiratory conditions, such as asthma, and cardiovascular diseases, including thrombosis, stroke and heart disease; developmental, such as autistic spectrum disorders (ASD), dyslexia and dyspraxia; learning disabilities;

Mental health conditions with symptoms such as anxiety, low mood, panic attacks, phobias, or unshared perceptions; eating disorders; bipolar affective disorders; obsessive compulsive disorders; personality disorders; post-traumatic stress disorder, and some self-harming behaviour;

Mental illnesses, such as depression and schizophrenia; or produced by injury to the body, including to the brain.

For example, in the case of Aderemi v London and South Eastern Railway Limited [2012] UKEAT 0316/12, a station assistant was held to have a disability because of chronic lower back pain that left him unable to stand for more than 20 minutes at a time or to do any bending or lifting, even though doctors could not pinpoint its cause.

NORMAL DAY-TO-DAY ACTIVITIES

Whether a person satisfies the definition of a disabled person for the purposes of the Act will depend upon the full circumstances of the case. That is, whether the adverse effect of the person’s impairment on the carrying out of normal day-to- day activities is substantial and long term.

The Act looks at a person’s impairment and whether it substantially and adversely affects the person’s ability to carry out normal day-to- day activities.

Meaning of ‘normal day-to-day activities

In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities.

Normal day-to-day activities can include general work-related activities, and study and education- related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents, and keeping to a timetable or a shift pattern.

A person works in a small retail store. His duties include maintaining stock in a stock room, dealing with customers and suppliers in person and by telephone, and closing the store at the end of the day. Each of these elements of the job would be regarded as a normal day-to-day activity, which could be adversely affected by an impairment.

The term ‘normal day-to-day activities’ is not intended to include activities which are normal only for a particular person, or a small group of people. In deciding whether an activity is a normal day-to- day activity, account should be taken of how far it is carried out by people on a daily or frequent basis. In this context, ‘normal’ should be given its ordinary, everyday meaning.

A normal day-to-day activity is not necessarily one that is carried out by a majority of people. For example, it is possible that some activities might be carried out only, or more predominantly, by people of a particular gender, such as breast-feeding or applying make-up, and cannot therefore be said to be normal for most people. They would nevertheless be considered to be normal day-to-day activities.

Also, whether an activity is a normal day-to-day activity should not be determined by whether it is more normal for it to be carried out at a particular time of day. For example, getting out of bed and getting dressed are activities that are normally associated with the morning. They may be carried out much later in the day by workers who work night shifts, but they would still be considered to be normal day-to- day activities.

In considering the ability of a child aged six or over to carry out a normal day-to-day activity, it is necessary to take account of the level of achievement which would be normal for a person of a similar age.

SUBSTANTIAL ADVERSE EFFECT

Disputes about whether someone is disabled often centre on whether their condition has a “substantial adverse effect” on their ability to carry out day-to-day activities.

Examples from cases that have already been decided by an employment tribunal can be informative about how to approach this question, although it is important to remember that it is the effect on the individual person that must be considered.

“Substantial” for these purposes means “more than minor or trivial” (section 212(1) Equality Act 2010).

This is a relatively low bar and the EAT has confirmed that an effect which is not “trivial” will be “substantial” for these purposes (Aderemi v London and South Eastern Railway Limited [2012] UKEAT 0316/12).

While the statutory Guidance contains lists of factors that it would be reasonable to regard as having a substantial adverse effect on day-to-day activities, and those that it would not be reasonable to regard as having that effect, this has been criticised by the EAT.

There is no sliding scale and no rigid distinction between the two (Aderemi v London and South Eastern Railway Limited [2012] UKEAT 0316/12).

Individuals and their reps should be wary about relying too much on those lists, and can challenge employers who do so, using the Aderemi case.

When considering the effect on someone’s day-to-day activities, the focus must be on things they cannot do and not things they can do. If there is one normal day-to-day activity that they cannot do, or can only do with difficulty, it does not matter that they can do a number of other activities easily.

The length of time it takes someone to do an activity is also relevant.

The correct approach is to compare the disabled person with the position they would be in if they did not have the disability, and not with the general population.

Mr Paterson was a senior police officer who joined the force in 1983 and had been promoted through the ranks to the position of chief inspector by 1999.

In 2001 he applied for promotion to superintendent but was denied.

In 2004, Paterson discovered he had dyslexia and brought claims in the employment tribunal of disability discrimination including that his employer had failed to make reasonable adjustments in the process for promotion to superintendent.

Although some adjustments had been made, they were insufficient.

The tribunal rejected Paterson’s claims on the basis that he was not disabled because his dyslexia only had a minor or trivial effect on his day-to-day activities, despite accepting that he needed more time to complete the exam than his colleagues.

This was for two reasons: it did not consider a high-pressure exam to be a normal day-to-day activity; and it thought his ability to carry out activities had to be compared to the “average population” and not other high-achieving individuals.

The EAT ruled that the tribunal was wrong on both counts.

It said that, first, carrying out an assessment or exam is a normal day-to-day activity (and, in any case, that reading and comprehension is itself a normal day-to-day activity).

Secondly, the tribunal’s task was not to compare the performance of the employee with the average person in the population, but to compare what the individual can do with what they would be able to do without the impairment.

The fact that the tribunal had recognised that Paterson needed more time to do the exam should have been enough for it to conclude that he was disabled. Paterson v Commissioner of Police and the Metropolis [2007] ICR 1522

In Elliott v Dorset County Council UKEAT/0197/20/LA an employment judge had also taken the wrong approach when she concluded that the claimant, who had autism, was not disabled for several reasons.

These included that he “also followed a second successful career as a wild firefighter outside of this daily workplace” and that “many people find public speaking and socialising difficult and many people adjust their behaviour in order to manage these occasions”.

The EAT said the judge had failed to focus on the core issue, which was that, because of his autism and Asperger’s, the claimant found it very difficult to deal with changes of procedure and, particularly in the context of stressful disciplinary proceedings, was not able to communicate properly with his line manager.

The EAT noted that dealing with change at work, being flexible about procedures and communicating with managers are all day-to-day activities. It dismissed the judge’s decision and ordered that the claim be dealt with afresh by a different tribunal.

EFFECT OF TREATMENT

“Measures to treat or correct” the adverse effects of an impairment, such as drugs or a prosthetic limb, must be ignored when deciding whether someone is disabled.

There is an exception for conditions that are correctible by ordinary spectacles and contact lenses (para 5 of Schedule 1 to the Equality Act 2010).

For example, an individual whose epilepsy is controlled by medication would need to explain how their condition would affect their day-to-day activities if they did not take the medication.

Likewise, someone with depression who is taking antidepressants and/or receiving counselling would need to explain the effects of their condition if they were not having either of those treatments.

This applies even if the treatment means that the effect of the condition is no longer apparent at all.

EFFECTS OF BEHAVIOUR AND ENVIRONMENT

Both the Paterson and the Elliott cases mentioned above brought up the issue of the extent to which someone’s coping and avoidance strategies affect the question of whether they are disabled.

In short, if an individual avoids certain situations or limits the things that they do to reduce the effect of their condition on their everyday life, does this mean they are no longer disabled?

It is clear from the statutory Guidance that a tribunal must take coping strategies into account when deciding whether an individual is disabled, even though this is not specified in the Equality Act 2010 itself.

The Guidance says that account should be taken of how far someone can be reasonably expected to modify their behaviour to reduce the effect of an impairment on their day-to-day activities, and that if this means that their condition no longer has a substantial adverse effect on their ability to carry out normal day-to-day activities, they would no longer meet the definition of disability.

Environmental factors can also influence how an individual’s condition affects their day-to-day activities.

These include temperature, time of day and how tired the individual is.

In this case the Guidance states that the fact that an impairment may have a less substantial effect in certain environments does not prevent it having an overall substantial adverse effect, and that someone can still be classed as disabled if the effect of their condition fluctuates according to external factors.

This creates a bit of a discrepancy in that someone still meets the definition of disability if they receive “treatment” that reduces the effect of the condition on their day-to-day activities so that they are no longer substantial, but not if they adopt their own “coping or avoidance strategies”.

Case law has not yet resolved this discrepancy and it has caused some problems for tribunals.

The EAT has refused to rule out the possibility that an individual who “unreasonably” fails to modify their behaviour or environment to lessen the effect of their condition could be held not to be disabled (Taylor v Ladbrokes Betting and Gaming Ltd UKEAT/0353/15).

However, this possibility does not come from the Equality Act 2010 itself and the idea can certainly be challenged.

Coping strategies will only prevent an impairment having adverse effects if they can be relied on in all circumstances.

If an individual’s strategies break down in some circumstances, for example when they are stressed or tired, they should not prevent someone being found disabled (Paterson v Commissioner of Police and the Metropolis [2007] ICR 1522).

WHAT DOES "LONG TERM" MEAN?

Note that it is the adverse effect of the impairment that must be long-term, not just the condition itself. The effect of an impairment is long term if:

it has lasted for at least 12 months;
it is likely to last for at least 12 months;
it is likely to last for the rest of the person’s life; or
the substantial adverse effect has ceased but is likely to recur.