Are Autism Spectrum Disorder (AS) and Attention Deficit Hyperactivity Disorder (ADHD) disabilities for the purposes of the Equality Act, 2010?

They might be, but it is not automatic. The burden of proof is on the claimant to prove disability. 

In Stedman v Haven Leisure an employment tribunal decided that Mr Stedman was not disabled for the purposes of the Equality Act 2010 despite his diagnoses of Autism Spectrum Disorder (AS) and Attention Deficit Hyperactivity Disorder (ADHD). He brought claims against Haven Leisure for disability discrimination following an unsuccessful job application to the company. 

Remember that having a diagnosis is not enough to prove disability. All four limbs of the section 6 definition test must be met:

1. You have an impairment (physical or mental or both);
2. It is long-term (or likely to be, recurring, progressive, etc.)
3. It has a substantial impact;
4. It affects your normal day to day activities.

This test does not apply to people whose impairment is cancer, HIV, MS or some severe sight impairments. 

At a preliminary hearing, an employment tribunal determined that Mr Stedman did have a mental impairment but was not disabled within the meaning of section 6 of the EqA 2010 on the basis that they assessed that the impairment did not have a substantial adverse effect on his ability to carry out normal day-to-day activities.

Mr Stedman appealed against that decision to the Employment Appeal Tribunal (EAT).

The EAT agreed with Mr Stedman and allowed the appeal on the basis that the ET had failed to consider three legal principles:

1. To assess whether the adverse effect is substantial the ET must compare the claimant as they are and how they hypothetically would be without the impairment. This also involves disregarding treatment, coping mechanisms that assist the disabled worker. 

2. Even if the only impact is on one day-to-day activity (for example, the ability to take care of personal hygiene) the impact can be substantial for the purposes of the legal test. 

3. It is not permissible to weigh up a claimant’s ability to carry out one day-to-day activity against another day-to-day activity to arrive at some overall assessment of ability to carry out day-to-day activities generally.

The EAT held that the tribunal had made several errors in failing to apply these principles. The tribunal was entitled to conclude that Mr Stedman was not disabled but not on these facts and the reasons given in this case. Their decision was legally perverse. The EAT allowed the appeal and remitted (sent back) the case to a fresh tribunal to determine whether Mr Stedman is disabled within the meaning of section 6.

The EAT also noted, in comments that do not form part of the judgment (this is called “obiter”), that a diagnosis of ASD or ADHD is not only relevant to the question of whether a claimant has a mental impairment for the purposes of section 6, it is also relevant to the question of substantial adverse effect. The diagnosis reflects a clinical judgment that someone is significantly different from the norm as regards the area of functioning covered by the diagnosis. Accordingly, a tribunal must take a clinical diagnosis of autism or ADHD into account as evidence as to the impact of that impairment.