24th May, 2021
Defining Disability – Employment Appeal Tribunal re-examines the approach
In the recent case of Mr A Elliott v Dorset County Council, the Employment Appeal Tribunal upheld the Appellant’s appeal on the basis that the Employment Tribunal’s decision on whether the Appellant’s disability “substantial” was perverse.
Mr Elliott (the Appellant) had worked for Dorset County Council as a Geographical Information Systems Manager for over 30 years. He was subject to disciplinary proceedings by a new line manager in which it was alleged that he had falsely recorded his working times, recording more hours than he had worked. On occasions, he was absent during the working day, but often worked until late into the night at home, working considerably more than his contracted hours in total, and the Appellant had agreed with his previous line manager that he would record working hours of 9 to 5, irrespective of the exact hours he worked. The Appellant said that he found it difficult to accept the new time management rules and to communicate with his new manager.
During the disciplinary process, the Appellant’s union rep noticed specific characteristics when the Appellant was trying to deal with his line manager and, after a referral for assessment, the Appellant was diagnosed with Autism Spectrum Disorder and Asperger’s syndrome.
The Appellant eventually accepted voluntary redundancy because there was an agreement that the disciplinary proceedings would be discontinued and he could leave his employment with redundancy and notice. He brought a claim on the grounds of disability discrimination.
His employer disputed he had a disability. A person has a disability under s6 Equality Act 2010 (“EqA 2010”) if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day to day activities.
The EAT referred back to the well-known 1999 case Goodwin v Patent Office to note that legal practitioners generally break down the test into 4 components:
- The impairment condition: Does the appellant have a physical or mental impairment?
- The adverse effect condition: Does the impairment affect the individual’s ability to carry out normal day to day activities?
- The substantial condition: Is the adverse effect substantial?
- The long-term condition: Is the adverse effect long-term?
Dorset County Council accepted the Claimant had an impairment with a long-term effect, but not that the effect was ‘substantial’.
The term substantial is defined by s212 EqA 2010 as “more than minor or trivial“. Surprisingly, considering it was the key issue in the Employment Tribunal, neither counsel had referred the judge to this definition. Instead, the Tribunal considered the EqA 2010 Guidance (“Guidance”) and the EqA 2010 Code of Practice (“COP”). The EAT emphasised that the Guidance and COP (collectively the “guidance”) were not statute and if the statutory definition under s212 was met, on a consideration of the ordinary meaning of the words, it should take precedence over the guidance. This was not done in this case.
The medical evidence suggested an impairment that was more than minor or trivial. The EAT determined that the Tribunal judge had failed to take relevant factors into account and had misdirected herself as to the relevant law, and the case was remitted back to the Tribunal for a fresh assessment of the medical evidence.
From this Judgment there are some key points for employers to consider if they are assessing whether an employee has a definition under the 2010 Act:
- Remember that primary legislation takes precedence over guidance. The guidance to the Equality Act is just that: guidance. Don’t forget that the Equality Act now has a definition for what is “substantial”.
- The Guidance is difficult to interpret. The EAT pointed out the guidance does not deal very fully with workplace activities and lacks examples of the difficulties neurodivergent individuals might face at work. Where the Guidance refers to a general understanding that a disability is “a limitation going beyond the normal differences in ability which may exist among people”, the EAT specifically highlighted how this definition can be differently interpreted, including questioning what “people” it may refer to.
- “More than minor or trivial” is likely to come down to medical evidence. But the individual’s ability to carry out day to day activities should not be compared with other peoples’ abilities, but to the individual, themselves were they not disabled. The focus should be on what the individual can’t do because of their impairment, not on what they can do despite the impairment.
- Reasonable adjustments. If there are adjustments in place to accommodate an impairment, the fact that the impairment ceases to have a substantial effect on a person’s workplace day-to-day activities because of that adjustment does not mean that the person ceases to be disabled.
- An individual is unlikely to fall outside the definition of disability because they have a coping strategy that involves avoiding the day-to-day activity that is affected. If there would be a substantial effect but for medical treatment or other “measures” (which may include a change of behaviour), it will fall under the definition of a disability.
- Take an overview. When it comes to determining disability, the EAT suggested it is best not to be too fixed on breaking down the definition into the four components suggested in Goodwin. When certain components are already admitted, the Tribunal must be cautious about focussing too closely on the disputed parts and forget to stand back and look at the bigger picture.
Determining whether an employee has a disability under the EqA 2010 is not always straightforward, as this case shows. If an employer has any doubts about whether an employee is protected under the Act because of a disability we recommend referring to Occupational Health and taking legal advice.
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