Definition of Disability for Employment Tribunals
How does an employment tribunal decide if someone is disabled or not? Please note before reading this article that a worker does not always actually have to be disabled for protection under the disability provisions of the Equality Act. Our website will contain successful case studies of where our clients were not actually disabled for the purposes of the act, but it was argued that the employers perceived them to be.
For all other cases, there is a wide definition of being classed as “disabled” under the Equality Act which many workers can fall under, even if they do not see themselves as disabled or have previously been turned down for disability benefits.
Being classed as disabled under the Equality Act can lead to a variety of additional obligations placed upon an employer and also lead to additional claims that can be brought within an employment tribunal. It also means that the compensation a tribunal can award is uncapped.
Disabilities Not Requiring Any Formal Test
You will be automatically classed as disabled without having to undergo any formal legal test if you have certain conditions. Some examples are HIV, multiple sclerosis, cancer as well as those registered as blind or partially sighted. Examples of cases we have acted on with disabilities falling into this category can be found on the Testimonials page of our website by filtering for “Disability Discrimination”.
For all other conditions the employment tribunal will undertake a formal legal test to determine disability. The main components are as follows:
QUESTION 1: Is there a physical or mental impairment?
Physical impairment
Physical impairments can be conditions such as back pain, long covid, symptoms arising from long covid, the menopause, epilepsy, endometriosis and ME. You may also have a variety of impairments which overlap in different ways, over different periods of time, which can accumulatively amount to satisfying the test.
Mental impairment
A mental impairment can include impairments such as depression, anxiety, ADHD, dyspraxia, dyslexia, bipolar disorder and autism. As mental illness can be complex, and waiting lists for diagnosis are currently very long, especially for conditions such as autism and ADHD, you do not need to have already been diagnosed by a GP, nor do you need a medical practitioner to be able to name a precise condition.
QUESTION 2: Affecting normal day-to-day activities
If you are found to have a mental or physical impairment, the employment tribunal will then proceed to the next stage which is to assess whether the impairment affects your ability to carry out normal day to day activities.
Examples of day-to-day activities being impaired might include:
Your ability to engage in hobbies or work activities;
Reduced mobility or co-ordination;
The ability to lift, carry or move every-day objects; and/or
The ability to concentrate, learn or understand.
Substantial effect
It is not enough, however, to prove that your day-to-day activities have merely been “affected”. You must also show that this effect has been substantial. Many claims fail at this stage so it is worth addressing this with guidance from a qualified solicitor.
There are a few aspects to consider here:
You do not need to prove that you are completely unable to carry out the activity, but the effect must be more than minor or trivial
It may also mean that you are still able to carry out the activity, but it is tiring or painful to do so. Alternatively, you might only be able to carry it out in a different way, such as only for short periods of time
A worker may take medication or have coping strategies to allow them to carry out such tasks . However, an employment tribunal would assess the impact of the condition without such medication/coping mechanism.
This is important as we have successfully argued that people are still classed as disabled even when their conditions or symptoms are currently under control through medication or counselling sessions. Recent examples are mental health conditions and epilepsy.
QUESTION 3: Long Term Effect
The final hurdle to prove that a condition amounts to a disability is to establish that it is “long term”, meaning that the effect of the impairment must already have lasted for, or will last for, at least 12 months.
We have acted for clients where a condition has been relatively newly diagnosed and not yet lasted for 12 months. For those cases we have still been able to argue that the client was disabled by providing medical evidence showing that the conditions were likely to last at least 12 months from the onset of the condition.
Whilst the long term effect question appears to be a relatively easy hurdle to cross, it can still be complex. Examples of complexities are:
A letter from a GP stating that a condition has lasted 12 months might appear satisfactory. However, this will likely not be sufficient as it is the effect which must be long term and not just the underlying condition. It is important that the medical evidence sought is detailed enough to satisfy the very precise requirements of the employment tribunal.
Sometimes, at the time of the discriminatory treatment, a condition may not yet have lasted 12 months and so there may not be adequate evidence to show that the effects would last that long. In that case, in addition to evidence in relation to the expected length of the condition, it may be worth exploring secondary conditions that may arise from the first principal condition. Cumulatively, the effects may last for at least 12 months.
Some clients have had fluctuating conditions which flare up occasionally throughout their life. Examples we have dealt with are arthritis, depressive conditions, epilepsy, and migraines. Again, through an exploration of the dates of diagnosis and flare ups we have been able to argue that these conditions were long term despite not having an impact on a regular basis.
Conclusion
Additional protection for workers is provided if they are deemed to be disabled. They are also protected for past or perceived disabilities.
As can be seen from this article, there are many complexities surrounding the establishment of whether a person is disabled for the purposes of the employment tribunal. There are also practical and tactical considerations to consider outside of strict definitions which will have an impact on the underlying case.
Various case studies and testimonials for disability claims we have been involved with can be found on the Testimonials page of our website by filtering for “Disability Discrimination”.
For further guidance it would be useful to refer to the 2011 Office for Disability Issues guidance which can be found here:
Section D of the Guidance provides useful guidelines and illustrations as to what are “normal day-to-day activities”
Section B expands on the meaning of “substantial adverse effect.”
Section C deals with “recurring or fluctuating effects.”
We are happy to provide a free legal assessment of your case to see if we can assist. Please either complete the contact form here or call us on 0333 444 5678.
