When you bring a claim in the Employment Tribunals for disability discrimination the most important thing that you must do is to clearly set out why you say you qualify for Equality Act 2010 protection and how you satisfy the section 6 definition of disability.
Being diagnosed with a medical condition does not mean that you are automatically disabled for the purposes of the legislation unless you have MS, cancer or HIV, and some severe sight impairments. Different rules apply here.
Being disabled for the purposes of Government benefits or having a blue parking badge does not mean you are Equality Act disabled either.
You must show that you meet the legal definition of disability.
The best way to demonstrate that you have a disability is to stick clearly to the definition in section 6 and to address each part of the definition:
- Do you have an impairment?
- Is it long-term? Long-term means has lasted or is likely to last 12 months. *
- Does it substantially impact you?
- Does it affect your normal day to day activities?Â
For mental health disabilities the test is exactly the same as for any other disability but you have to realise that there is a good deal of stigma attaching to mental health and it is incumbent on you to demonstrate how your mental health impairment affects you and that it is more than normal feelings of feeling low or down.
When preparing to submit your claim, whether you have a legal representative or not, you need to be able to spell out why you say you are legally disabled. It may be that in addition to this the tribunal will ask you to prepare a disability impact statement explaining to them in more detail how you believe you are legally disabled. This statement takes the form of a short document in which you set out how your mental health impairment impacts your life. You should give specific examples of what you cannot do or are only able to do with difficulty. Do not focus on what you can do: this is not the correct test. The tribunal wants to know what you cannot do or what is difficult for you to do so they can assess impact.
It is always wise to support a disability claim with medical evidence. This could be as simple as a copy of your medical records from your GP or a letter from your GP explaining how your impairment impacts you.
*The critical thing you must do with the long-term aspect of impairment is to be able to show that at the time of the thing you are complaining about (dismissal, discrimination) you were already long-term impaired. This can be particularly difficult with mental health impairments because often the onset is difficult to pin down in time. If you have not been impaired for 12 months at the time of the thing then you need to be able to say why your impairment is likely to last 12 months or more. This is the area where mental health impairments most usually fall down in proving disability. It merits special focus.
Karen Jackson is a leading expert in disability discrimination in the employment context and is COO of didlaw.
