This year we are starting a new monthly blog series going ‘back to basics’ and focusing on key issues which arise commonly in the workplace and are often the focus of disputes. This month, we are looking at the legal definition of disability.
Government statistics indicate there are 13.9 million people with disabilities in the UK, and 19% are working age adults. Employers have a duty to make reasonable adjustments for employees with disabilities, and such employees are protected from discrimination under the Equality Act 2010. Therefore, every employer should be aware of what amounts to a disability under the Act.
Under the Equality Act 2010, a person has a disability if:
- They have a physical or mental impairment; and
- That impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
What is an impairment?
- Impairment does not have a specific legal definition in this context and will cover a wide array of symptoms. Whether something is an impairment is generally considered a matter of common sense
- The impairment does not have to be caused by a formally diagnosed medical condition. An employee may have a physical or mental impairment for which their doctor cannot find a specific cause, but this does not prevent it being a disability if it meets the other tests.
- The government has the ability to define certain conditions as ‘deemed disabilities’, meaning they are considered to be a disability immediately upon a person developing them. Currently, deemed disabilities are cancer, HIV and multiple sclerosis.
- There are also Regulations which provide that a person will be deemed to have a disability where they are certified as blind, severely sight impaired, sight impaired or partially sighted by a consultant ophthalmologist.
- Some conditions are specifically excluded from being classed as disabilities. Such conditions include hayfever, alcohol and substance addiction, a tendency to steal, set fires or abuse other persons and exhibitionism. It should be noted that the position around these can be complex. For example, alcohol addiction may be a symptom of a mental health condition which is a disability, even if the addiction itself is not.
What are ‘normal day to day activities’?
- Normal day to day activities generally includes activities such as sleeping, cooking and eating, walking, driving or using public transport, shopping, carrying out household chores, talking, reading, taking part in social interaction and forming relationships and taking care of oneself.
- This does not necessarily include specialised activities, or activities where very specific skills or level of ability are required, such as playing sport to a high level or playing a musical instrument.
- ‘Normal day-to-day activities’ can also include typical work activities, such as typing, manual handling of goods, standing or sitting for long periods of time or working at night.
What is a substantial adverse effect?
- A substantial adverse effect is something which is ‘more than minor or trivial’. Generally, it would cover situations where a person cannot carry out certain day to day activities, or can only do so with difficulty or fatigue. It would also cover where the person avoids carrying out certain activities because of pain, fatigue, embarrassment or loss of energy or motivation.
- Medical treatment is not taken into account when assessing disability, therefore when looking at the effect of an impairment on day to day activities, what it important it what the effect would be if the person was not undergoing treatment. The only exception to this is visual impairment which is corrected with glasses and contact lenses, which is not considered to be a disability.
- Severe disfigurement is treated as having a substantial adverse effect on that person to carry out normal day-to-day activities – the only question in such cases would be around long term effect. Therefore a temporary facial injury as a result of an accident is unlikely to be a disability, whereas permanent scarring potentially is.
When is an impairment long term?
- The effect of an impairment is deemed to be long-term if it has lasted for at least 12 months, it is likely to last for at least 12 months, or it is likely to last for the rest of the person’s life. If an impairment stops having a substantial adverse effect, it is deemed to continue to have that effect if the effect is likely to recur in future.
- Past disabilities also count for the purposes of the Equality Act. For example, an individual could have experienced an impairment which fell within the definition of disability above but could have suffered no ill-effects from the impairment for several years. If they were discriminated against based on their past disability, they would still be protected under the Equality Act.
- Where a person has a progressive condition which is likely to develop over time, they will be covered by the Act from the point when the condition leads to an impairment which has some effect on their day to day activities which is not substantial, if the effect may well be substantial in the future and is likely to be long term. This would generally cover conditions such as motor neurone disease or Parkinson’s disease.
Whether a person has a disability for the purposes of the Equality Act is dependent on their circumstances and, where employers are aware of any health problems, they should generally give thought to whether the employee might have a disability. If there is any doubt or ambiguity it is often advisable to make an occupational health referral or seek medical information, with the employee’s consent, in order to ensure they are supported in the workplace where necessary.
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