As a disability discrimination lawyer, this is probably the most frequently asked question that I have to deal with in practice. My clients will say, “But it is clear from the medical records that I have a disability, so why do I have to prove disability in the Employment Tribunal?”
The reason is relatively simple but mostly misunderstood, and it is this: only a tribunal can decide definitively if a claimant in employment litigation is disabled according to the definition of disability in section 6 of the Equality Act 2010. All the medical reports in the world cannot remove the power of the tribunal to make this decision. Why? Because it is a legal decision.
There are a few exceptions to this rule of having to prove disability. They are:
- The deemed or automatic disabilities are only three: HIV, multiple sclerosis and cancer. Also, some severe sight impairments qualify without having to be put to the test.
- If the respondent employer agrees that the claimant employee meets the section 6 definition, the claimant does not have to prove the point in the tribunal.
Often, employers will dispute that an employee is disabled because this is one of the means available to them to defend a case of disability discrimination. If the employee is not disabled, they cannot have committed any act of disability discrimination. It is not wise for employers to try to defeat a disability discrimination case in circumstances where it is plainly obvious that the employee is disabled, but unfortunately, this can still happen. This will rarely be met with anything but disdain by a tribunal, but it does not mean employers don’t regularly avail themselves of it. It makes life more difficult for a claimant; sometimes it increases their legal costs, and sometimes it might mean that there needs to be an additional preliminary hearing to decide the point. All of this adds stress, expense and aggravation, so yes, it’s designed to deter claimants.
The legal test for disability is:
- Is there a physical or mental impairment (or both)?
- Is the impairment long-term, i.e. has it lasted for 12 months or more at the time of the alleged discrimination, or is it likely to last 12 months or lifelong?
- Does it have a substantial impact, i.e. more than one which is minor or trivial?
- Does it have an adverse impact on the ability to carry out normal day-to-day activities? The focus should be on what the disabled person cannot do or can only do with difficulty, not on what they can do.
If you’re wondering how to prove disability to a tribunal, you should go into battle armed with the best medical records you can provide, including GP notes and any records or letters from a treating consultant. In some cases, you may need to commission an expert medical report. A letter from a GP or other consultant can be useful evidence, but it is not enough for this letter to simply state a diagnosis and treatment being provided. What the tribunal is interested in is does the impairment substantially impacts daily living. This is necessary because the tribunal members are not medically qualified, and any help you can give them in terms of medical evidence will assist your case.
The other common requirement for a claimant employee to prove disability is an impact statement. This is a witness statement in which you set out how your medical condition(s) mean that you tick all four boxes on the section 6 disability test and meet the section 6 definition. This is your evidence so that the lay tribunal can understand the day-to-day functional impact on you of your impairment.
This takes the form of a statement in your own words describing how your impairment(s) impact your daily life. You should include information about the normal day-to-day things that you find difficult to do, for example, taking care of personal hygiene, cooking, cleaning, socialising, and taking public transport. You should also, in your statement, discount any treatment you are receiving. What the tribunal wants to know is, but for the treatment, could you function? Whilst this seems like an artificial test, how can you say you might be able to function if you stop taking your anti-depressant medication, for example, but you might think about how you were unable to function before the medication had any effect. You should also consider any other forms of treatment, such as CBT or other talking therapies and coping mechanisms you have adopted. Strip it back to how you function when your impairment is not controlled or treated and how this affects you. This is the evidence the tribunal will want to hear from you.
As the leading firm of employment lawyers in London for disability discrimination, much of our focus is on helping clients to get over this initial hurdle in their disability discrimination claim so that they can hold their employer accountable for any unfavourable or detrimental treatment.
This blog was brought to you by Karen Jackson, Solicitor, Founder and Managing Director of didlaw who specialises in disability discrimination law in the workplace.
