Definition of Disability

‘Disability’ is one of the protected characteristics under the Equality Act 2010 (‘EA’). The definition of disability is found in s.6 EA as follows:

            “A person (P) has a disability if:

(a)   P has a physical or mental impairment, and

(b)  the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”

Therefore, before a claimant can bring a claim in the employment tribunal, he/she must show that:

1. He/she has a physical or mental impairment

2. The impairment has an adverse effect on normal day-to-day activities

3. The effect is substantial

4. The effect is long-term

Impairment

The first limb of the definition requires the individual to have a physical or mental impairment. There is no definition of what constitutes an impairment in the EA. However, the Guidance states that there is no need for a claimant to establish a medically diagnosed cause for their impairment. It is the effect of the impairment which must be considered and not the cause.

In many cases, there will be no dispute whether a person has an impairment. Any disagreement is more likely to be about whether the effects of the impairment are sufficient to fall within the definition and in particular whether they are long-term. Whether a person is disabled for the purposes of the EA is generally determined by reference to the effect that an impairment has on that person’s ability to carry out normal day-to-day activities. An exception to this is a person with severe disfigurement.

A disability can arise from a wide range of impairments which can be:

• sensory impairments, such as those affecting sight or hearing;

• impairments with fluctuating or recurring effects such as rheumatoid arthritis, chronic fatigue syndrome, fibromyalgia, depression and epilepsy;

• progressive, such as motor neurone disease, muscular dystrophy and dementia;

• organ specific, including respiratory conditions, such as asthma, and cardiovascular diseases, including thrombosis, stroke and heart disease;

• developmental, such as autistic spectrum disorders, dyslexia and dyspraxia;

• mental health conditions with symptoms such as anxiety or panic attacks; eating disorders; bipolar affective disorders; obsessive compulsive disorders; personality disorders; post-traumatic stress disorder; and

• mental illnesses, such as depression and schizophrenia.

 Adverse effect on normal day-to-day activities

The impairment will only amount to a disability if it has a substantial adverse effect on normal day-to-day activities.  Again, the EA does not define what constitutes normal day-to-day activities, but the Guidance assists by clarifying that “in general, day-to-day activities are things people do on a regular or daily basis”.  This will include activities carried out in both personal life and working life. However, where activities are themselves highly specialised or involve highly specialised levels of attainment, they would not be regarded as normal day-to-day activities for most people.

Substantial adverse effect

The EA states that substantial means “more than minor or trivial” (s.212). A substantial adverse effect could include where a worker can carry out the activity, but only for short periods of time or more slowly than usual or only in a particular way or under certain environmental conditions.

If an individual receives medical treatment for his/her condition or uses aids, such as a prosthesis or hearing aid to assist with the condition, the condition will still be considered as having a substantial adverse effect if without the treatment or aid, it would have this effect (with the exception of poor sight corrected by glasses or contact lenses).

An impairment which consists of a severe disfigurement is to be treated as having a substantial adverse effect on normal day-to-day activities.  Note, this does not include tattoos or piercings.

If the individual has a progressive condition, i.e. one which gets worse over time, for example, dementia and motor neurone disease, it does not matter if it only has a minor effect now. It will still be treated as a disability as long as it has some effect on the individual’s daily life now and it is likely to have a substantial effect in the future.

Long-term effect

An impairment will have a long-term effect only 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 life of the person affected.

If an individual suffers from a condition which later develops into another condition related to the first, the length of time of the conditions will be aggregated to determine whether there is a substantial long-term adverse effect.

Some conditions have effects which recur, or which come in episodes or flare-ups. If an individual has such a condition, he/she will be treated as having a disability under the EA, even if the substantial adverse effects do not last for more than 12 months at a time. The individual would have to show that the adverse effects are likely to come back again in the future.

Exceptions to the statutory definition

Deemed disabilities

The following conditions are expressly deemed to be disabilities for the purposes of the EA:

• Blindness, severe sight impairment, sight impairment, partial sightedness (provided it is certified by a consultant ophthalmologist)

• Cancer, HIV and multiple sclerosis

Excluded conditions

The following conditions are expressly stated not to be impairments and therefore not disabilities:

• Addiction to alcohol, nicotine or any other substance

• Tendency to make fires

• Tendency to steal

• Tendency to physical or sexual abuse of others

• Exhibitionism

• Voyeurism

• Seasonal allergic rhinitis (i.e. hay  fever)

• Obesity

Note that an impairment caused by any of the above conditions might of itself amount to a disability. For example, depression caused by alcohol addiction would not be prevented from being a disability merely alcohol addiction is excluded from being an impairment. The usual statutory test would need to be satisfied to determine whether the depression was itself a disability.

Past disability

An individual who no longer has a disability but who had a disability in the past are protected under the EA from any discrimination in relation to their past disability.