When Does an Impairment Have a Substantial Adverse Effect
Disability discrimination has long been against the law, even before the Equality Act of 2010, but the Act has helpfully defined certain aspects of what constitutes disability so that it can be easier both for employers to ensure they are not discriminating and for employees to determine whether they are suffering discrimination and assess their chances of success with a tribunal claim.
One of the key factors in assessing and identifying disability discrimination is what actually counts as disability in the eyes of the law. The guidance on the Equality Act says:
“A person has a disability for the purposes of the Act if he or she has a physical or mental impairment and the impairment has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.”
What is ‘substantial’?
A recent case in the Employment Appeal Tribunal, Mr A Elliott v Dorset County Council: UKEAT/0197/20/LA (V) has clarified the definition of ‘substantial’ and gives useful guidance to employers when considering how best to manage employees with disabilities.
Mr Elliot had been employed by Dorset County Council since 1984. In 2018, a new line manager was appointed and soon after that, disciplinary proceedings were started against Elliot, saying that he was absent during the working day and that he had put down more hours than he had actually worked. In his defence, Elliot said that he actually worked longer than his contracted hours:
“I regularly work obsessively, well into the evening. For the last ten years or so, my wife has insisted that I stop at midnight. This has made the disciplinary experience being accused of claiming I worked longer than I do particularly galling, since it is the opposite of the truth.”
With him in the disciplinary meeting was his trade union representative, who suggested that he should consider obtaining a referral for assessment to establish whether he was on the autistic spectrum because of some of the characteristics he was displaying when trying to deal with the problems with his manager. Those characteristics included
“ … unflinching honesty; difficulty processing other people's emotions; struggling to assimilate verbal/non-verbal communication; difficulty with back and forth conversation; finding it difficult to cope with changes of plan; black and white thinking, and taking people very literally; and, procedural compliance and dislike for any digression from rules, established policy or procedures.”
The assessment took place, and he was diagnosed with Asperger’s Syndrome. Before the assessment was completed, the council proposed a restructuring of the department where Elliott worked, and he was offered redundancy on the proviso that the disciplinary process was discontinued and he could leave his post with redundancy and notice pay.
The basis of Mr Elliott’s claim in the employment tribunal was that he had been discriminated against on the grounds of disability. The tribunal ruled that he did not count as disabled because his impairment did not have a “substantial” adverse effect on his ability to carry out day-to-day activities. To arrive at this conclusion, they looked at his ability to do certain tasks and compared it to the population as a whole. Elliott then appealed.
What the EAT ruled
The EAT overturned the employment tribunal’s decision that Elliot was not disabled. The judgment covers several points which employers should note:
The tribunal should have looked at the fact that ‘substantial’ has more than one meaning; in this case, it should be taken to mean what it says in the Equality Act 2010 i.e. “more than minor or trivial”. This means that the qualifying requirement is lower than might be suggested by the normal use of the word ‘substantial’.
There is no spectrum of effect associated with an impairment. Unless an impairment is minor or trivial, it will, by default, be considered substantial.
Merely because someone can carry out day-to-day activities does not mean that they can do so without impairment. When a tribunal looks at whether someone counts as disabled, their focus should be on what the person cannot do or can only do with difficulty, rather than what they can do.
The correct comparison for a tribunal to make is between how the person carries out the activity in question and how they would carry it out if they did not have the impairment, rather than how people in general carry out that activity.
An individual with an impairment may have evolved coping mechanisms to mitigate its worst effects but this does not mean that by doing so, they have somehow ceased to be disabled. An impairment that has been mitigated is still present. Additionally, any coping mechanism may fail on occasion – if the individual is under significant stress, for example.
What should employers bear in mind?
This judgment may mean that it becomes easier for employees to show that their impairment has a substantial adverse effect on how they carry out their day-to-day activities. It certainly seems that the bar has been set very low on this issue. Employers who find themselves facing a claim for disability discrimination would not be advised to try and defend it themselves: the law is complex, and it would be easy to make a mistake which could prove costly in the long run. Better by far is to consult an employment law expert who will be able to give clear advice on how best to progress, both at the disciplinary stage and in the event of a tribunal claim.