In order to bring a claim for disability discrimination a claimant must firstly prove that they have a disability under the equality act 2010. This means satisfying the gateway requirements of the Equality Act 2010 under which a disability is defined as a mental or physical health impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. The definition of a disability under the equality act 2010 has come into question in recent cases, so tribunals need to consider what claimants can’t do more than tasks they are unable to complete.
In recent years the direction of travel in case law has been towards a looser interpretation of this test. A wide variety of conditions including obesity and chronic fatigue syndrome have been found capable of being a disability under the equality act 2010. The meaning of day-to-day activities has also been widened to incorporate such diverse pursuits as standing still for long periods, sitting examinations, and lifting heaving goods.
The recent Employment Appeal Tribunal (EAT) decision in Elliot v Dorset CC provided some useful clarification on how tribunals should apply this test. Mr Elliot was an information systems analyst who had worked for Dorset County Council for 34 years. He was subjected to disciplinary proceedings for matters relating to timekeeping and poor communication. He accepted redundancy to prevent the disciplinary process from continuing. During the course of the disciplinary he obtained a diagnosis of Asperger’s syndrome and went on to claim that the issues in the disciplinary arose in consequence of his impairment.
The tribunal at first instance found that he was not disabled. The basis of this decision was a list of traits associated with the Claimant’s conditions which included ‘unflinching honesty’, ‘black and white thinking’ and ‘taking people very literally’. The tribunal found that these were not substantial impairments – they were not sufficiently significant to meet the threshold under which the Claimant could be considered disabled. So, the claimant was found not to have a disability under the equality act 2010 initially.
The EAT found that the tribunal’s analysis was flawed as it had focused on what the Claimant could do as oppose to what he could not. This has been a regular feature of a number of appealed tribunal decisions. Tribunals should consider this through an assessment of how disability limits or impacts upon the individual rather than through a comparison with the population at large.
The EAT also found that the fact that a person has developed coping strategies to deal with workplace situations does not ordinarily mean that they cannot be disabled. Coping strategies are rarely 100% effective and often involve the disabled person avoiding the situation which they find difficult or challenging. The legal test is “but for” the treatment/coping mechanisms how can the person function? Coping mechanisms should be disregarded.
The EAT remitted the case back to the tribunal to reconsider its decision in the light of further findings on the Claimant’s health condition. The case will be a reminder to claimant solicitors not to take the issue of disability for granted and to plead disability by focusing upon what a claimant can’t do rather than what they can.
This blog was written by Mark Alaszewski, Solicitor, didlaw.
