Disability – when is an impairment substantial?
28 April 2021
Employers often ask us how to determine whether an employee is disabled under the Equality Act 2010. This is relevant when assessing the risk from a disability discrimination claim, when considering an employee’s fitness to work, or workplace adjustments. An Employment Appeal Tribunal decision has clarified the approach to use when deciding whether an impairment is “substantial” in its effect. Compensation in discrimination claims is potentially unlimited, so it is vital that employers get this right.
The definition of disability in the Equality Act is:
– a physical or mental impairment
– which has a substantial long-term adverse impact on the individual’s ability to carry out normal day to day activities.
In this case, the focus was on the word ‘substantial’. In the Equality Act, ‘substantial’ is defined only as being ‘more than minor or trivial’ (section 212).
Background to the case
In Elliott v Dorset County Council, Mr Elliott had worked for Dorset Council for 34 years. The employer proposed a departmental restructure and Mr Elliott apparently accepted redundancy because his employer agreed to discontinue disciplinary proceedings against him.
During the disciplinary process, the employee was diagnosed with Asperger’s syndrome. The effect of his condition was that he had trouble reading others and understanding instructions from them unless they were very clear. He had well-established routines and struggled to cope when these were no longer possible to maintain. He required time to process information which affected work relationships.
Further to his redundancy, Mr Elliott brought claims against his employer for unfair dismissal and disability discrimination. His employer argued that he was not disabled on the basis that his impairment was not substantial.
Employment Tribunal decision
The Employment Tribunal applied the definition of disability, but also considered the separate Guidance and Code of Practice in relation to determining whether Mr Elliott’s impairment was substantial. The conclusion was that whilst his ability to carry out a range of day-to-day activities was clearly affected from time to time, it was not at any time substantially adversely affected. Mr Elliott appealed against this finding.
Employment Appeal Tribunal decision
The Employment Appeal Tribunal (EAT) concluded that the statutory definition of “substantial” was sufficient to determine whether the impairment had a substantial adverse effect on Mr Elliott’s ability to carry out day-to-day activities.
The EAT emphasised the following failings in the Employment Tribunal’s approach:
- The day-to-day activities that the employee could not do, or could only do with difficulty, were not sufficiently identified. These included dealing with change at work and being flexible about procedures and communicating with managers, which were considered day-to-day activities.
- The employee’s coping strategies were focused on, without a consideration of whether they might break down in certain circumstances.
- In considering whether the adverse effects were “substantial”, there was an excessive reliance on a comparison of the employee with the general population, rather than applying the statutory definition of substantial as “more than minor or trivial”.
The EAT concluded that the statutory definition of “substantial” prevails over the Guidance and Code. The Guidance and Code should only be considered where the statutory definition fails to provide a conclusive answer. The focus of the test is to look at what a person cannot do, or can do only with difficulty, rather than on the things that the person can do. Where the Guidance or the Code are used, a Tribunal should compare how the activity is currently carried out by the person, with how it would be carried out if they did not have the impairment.
The EAT ordered a new Tribunal hearing with a different panel to consider the evidence afresh.
Employers should clearly record information obtained from employees which details the challenges they face on a day-to-day basis due to impairments. Examples should be collected of the type of work activities that are difficult or are managed using coping strategies. If an impairment has more than a minor or trivial effect based on medical evidence, reasonable adjustments should be considered at an early stage. Our experienced team can advise employers and help avoid potentially costly discrimination claims.
If you are dealing with any issues arising from an employee’s disability, then we can help. Please call us on 01243 836840 for a no obligation chat, or email us at [email protected].