In the first of our regular employment law updates, Sheilah Cummins discusses a recent case that may have an impact on how the bar is set for disability discrimination claims.
Many HR professionals will already know that the definition of “disability” for the purposes of protection from disability discrimination under the Equality Act is an unwieldy beast. Various criteria must be met, as follows:
1. there must be a physical or mental impairment; which
2. has an adverse effect on the ability to carry out normal day to day activities;
3. that adverse effect is substantial; and
4. the adverse effect is long-term (or likely to recur).
Assessing an employee’s impairment against those criteria can be, very often, more of an art than a science. For this reason, many employers tend to err on the side of caution so as to ensure that their obligations to make reasonable adjustments, in particular, are duly satisfied.
In the recent case of Elliott v Dorset County Council , the Employment Appeal Tribunal provided guidance on the approach to be taken in determining whether or not an employee meets the definition of “disability” and, in particular, what is meant by the words “substantial adverse effect”.
The result is that the threshold for determining a “disability” is lower than many had previously thought.
In this case, the Claimant (Mr Elliott) was an IT Systems Manager who was disciplined for false time recording. During the course of the disciplinary proceedings, the Claimant saw his GP about feeling anxious and suffering with a low mood. He was referred to a wellbeing service where an assessor decided that he should be assessed for autism and Asperger’s syndrome. He was then diagnosed with both autism and Asperger’s.
When his employer decided to restructure, the Claimant accepted redundancy and notice pay as a means of avoiding the full disciplinary process. He subsequently made a claim to the Tribunal for disability discrimination, alleging that because of his condition(s) he struggled with changes to processes and procedures (thus, explaining the anomalies with his time recording and the issues he had communicating with his line manager).
The question of whether the Claimant was, in fact, disabled was decided by the Tribunal as a preliminary issue (although, please note that the EAT expressed some concern as to whether or not it was appropriate to determine the question as a preliminary issue at all).
The Employment Judge, in focusing on what the Claimant could do and on the coping strategies he employed in order to do so, held that the Claimant was not disabled because his impairment did not have a substantial adverse impact on his ability to carry out day-to-day activities.
The Employment Appeal Tribunal rejected this approach. The correct approach, so it said, was to focus on what the Claimant could not do or could do only with difficulty and decide from there whether the effect on the Claimant was substantial. It was wrong to conduct a balancing exercise between what the Claimant could and could not do. If the effect of what he could not do was more than minor or trivial then it would meet the threshold for “substantial” and the definition for disability could be met.
The EAT remitted the case to a fresh Tribunal so that a detailed assessment of all the evidence could be carried out in order to determine whether the Claimant was disabled.
Whilst we will need to wait and see if the Claimant is ultimately found to be “disabled” by the fresh Tribunal, the practical effect of this case is that more impairments will likely fall within the scope of protection under the Equality Act. It will make it that much harder for employers to argue that an employee’s health condition does not have a substantial adverse effect, as the activities they cannot do need only be impacted in more than a minor or trivial way in order to meet this part of the test. Employers are advised to bear this in mind when investigating the reasons behind an employee’s sickness absence, or when requesting a medical report, to ensure they ask the right questions of the medical professional and, ultimately, enable them to determine the extent of any risk to their organisation before making any final decisions.