The Definition Of Disability Equality Act is important to understand.
To claim disability discrimination in work, you will first need to establish that you are a disabled person.
The definition of disability – Equality Act is:
‘ a person has a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on their ability to do normal daily activities.”
The definition of disability is not straightforward and the key elements must be broken down and considered separately.
Definition Of Disability – Equality Act
The first step is establishing that you have a physical or mental impairment, which is not defined in the Equality Act 2010. There is no need to establish a medically diagnosed cause for the impairment, which is given its “ordinary and natural” meaning. Therefore, you will have an ‘impairment’ if any of your physical or mental abilities are reduced in some way. It could be because of an illness or medical condition but it does not have to be.
For example, if you have something wrong with you physically, this may amount to a physical impairment. The term mental impairment covers a wide range of impairments related to mental functioning.
“Effect on normal day-to-day activities”
The impairment will only be a disability if it causes a substantial adverse effect on your ability to carry out “normal day-to-day activities.” The activities must be “normal,” the Equality Act 2010 guidance states:
“In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and traveling by various forms of transport, and taking part in social activities.”
The definition does not include activities that are normal for a particular person or small group of people. Therefore, some specialised activities such as playing a musical instrument or sport to a very high level, may not meet the definition.
Normal day-to-day activities could include things like:
- following instructions
- communicating with people
- getting washed and dressed
- going to the shops
- lifting and carrying objects
- preparing and eating food
- sitting down or standing up
- using a computer
- using public transport
- reading and writing
This is not an exhaustive list. In most situations, it is best to look at how impairment affects the person, rather than what the impairment is. For example, two people could have the same impairment, but if they impact them in different ways, one person could meet the definition of disability in the Equality Act 2010 and the other not.
For someone to be classed as having a disability, it does not matter:
- Whether the impairment is physical or mental
- The cause of the impairment
- If the impairment does not affect them all the time or it changes
- if they have not had a medical diagnosis – as long as they can still show a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
“Substantial Adverse Effect”
The next part of the definition of disability under the Equality Act 2010 is whether the impairment has a “substantial adverse effect” on your ability to carry out normal day-to-day activities.
Identifying an adverse effect is often straightforward, but it must be “substantial” in order to meet the test. The Equality Act 2010 states that “substantial” means “more than minor or trivial.” The guidance in the Equality Act 2010 comments:
“the requirement that an adverse effect on normal day-to-day activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people”.
More than minor or trivial is a fairly low standard. Some guidance from case law in addressing this point is:
The focus should be on what you cannot do or can do only with difficulty, and not on what they can do easily.
The Tribunal should look at the whole picture, but should not attempt to balance what a person can do against what they cannot do.
The statutory guidance should not be used too literally and, in particular, its examples are illustrative only. The guidance should not be used as a checklist.
An ability to mitigate the effects of an impairment, for example, by carrying something in small quantities, does not prevent there being a disability.
Some examples amounting to a substantial adverse effect are:
- Difficulty in getting dressed.
- Changes in behaviour around people, making it difficult to be accepted in public places.
- Low motivation.
- Difficulties in preparing a meal.
There are special provisions about recurring or fluctuating conditions such as arthritis. If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out day-to-day activities, it is to be treated as having that effect if that effect is likely to recur.
A progressive condition is one that gets worse over time. People with progressive conditions can be also classed as disabled.
It has lasted at least 12 months;
The period for which it lasts is likely to be 12 months; or
It is likely to last for the rest of the life of the person affected.
Can you automatically be disabled?
You automatically meet the disability definition under the Equality Act 2010 from the day you’re diagnosed with:
- HIV infection
- Multiple sclerosis diagnosis
In some circumstances, people with sight impairment are automatically treated under the Act as disabled.
Being neurodivergent will often amount to a disability under the Equality Act 2010, even if the person does not consider themselves to be disabled.
Long covid affects a person’s day-to-day activities. At the moment, it is understood that it can last or come and go for several months, even years.
Menopause can also be classed as an impairment depending on the ways it affects the employee.
What if I no longer have a disability?
In most circumstances, a person will have the protected characteristic of disability if they have had a disability in the past, even if they no longer have the disability.
Even, non-disabled people are protected against direct disability discrimination, where they are perceived to have a disability or are associated with a disabled person.
What should I do if I have a disability in the workplace?
It’s important for your employer to be aware of your disability, even if it does not impact you all the time. If they are aware of it, then reasonable adjustments at work can be made. If an employer is not aware of your disability, you will not be able to allege disability discrimination in work.
Employees are still protected from discrimination if their employer could reasonably be expected to know they have a disability.
- Thomas has arthritis. It’s mild and it does not often affect their day-to-day activities. At this stage, it’s likely that Thomas does not have a disability. Over time, Thomas’ arthritis gets worse. It starts to have a significant impact on his day-to-day activities. If this goes on for 12 months, or it’s likely to, then Thomas probably has a disability.
- Megan has colon cancer. The cancer is at an early stage and it is not having any effect on day-to-day activities. Megan is still disabled because cancer is automatically classed as a disability under the Equality Act 2010.
- Pheobe’s mother died recently, and she is experiencing trouble with carrying out daily activities. She has been to see her GP. Her GP thinks she has depression but she was not diagnosed. Pheobe could have a disability if it’s having a long-term and substantial adverse effect on her ability to carry out day-to-day activities.
This is an example of where an employer might reasonably be expected to know that Pheobe could have a disability.