In the case of Elliott v Dorset County Council UKEAT/0197/20, the Employment Appeal Tribunal (EAT) held that, when determining whether an individual is disabled under the Equality Act 2010, Employment Tribunals must adopt the correct approach in their interpretation of “substantial adverse effect”. The EAT held that the statutory definition of “substantial” prevails over any other guidance.
Section 6 of the Equality Act 2010 (EqA) states that an individual is disabled if:
They have a physical or mental impairment; and
That impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities
This definition can be considered in more detail by breaking it down into the following:
Under the EqA, there is not a specific definition of “physical or mental impairment”. Instead, the terms should be given their ordinary and natural meaning. There is also no need to consider how the impairment was caused; instead, the focus is on the effect of the impairment.
In support of the EqA, the Equality and Human Rights Commission (EHRC) produced a Code of Practice which explains how the Act should operate in practice. The Code states that the term “mental impairment” should cover a variety of impairments to mental functioning, which can include learning difficulties and mental health conditions.
According to the EqA, “substantial” means ‘more than minor or trivial’ and the EAT held that this definition prevails over any guidance on the matter. If the adverse effect has more than a minor or trivial impact on the person’s ability to carry out day-to-day activities, then this part of the definition will be met. The focus of the test is to look at what a person cannot do, or can do only with difficulty, rather than what they are able to do.
The impairment will be classed as “long-term” if:
It has lasted for at least 12 months; or
It is likely to last for 12 months or more; or
It is likely to last for the rest of the life of the person affected.
In SCA Packaging Ltd v Boyle [2009] UKHL 37 it was held that the word ‘likely’ should be interpreted as meaning ‘could well happen’ rather than ‘more likely than not’.
The EqA guidance states that “day-to-day” activities are things people do on a daily or regular basis, including work activities. These activities could include shopping, reading and writing, having a conversation or using the telephone and taking part in social activities. It does not, however, include specialised activities which are normal for a small group of people, such as playing high level sport.
The Claimant had been employed by Dorset Council as a geographical information systems manager for 34 years. In 2018, the Claimant was subject to a disciplinary investigation for allegedly falsely recording his time worked. However, he denied the allegations and in fact claimed he regularly worked longer than his contracted hours. The Claimant shared that he had agreed with his old line manager that he would record working hours of 9 to 5, irrespective of the exact hours he worked. The Claimant 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 Claimant’s trade union representative advised that he should be assessed to establish whether he was on the autistic spectrum because of some of the characteristics he was displaying when trying to deal with the problems with his manager. The Claimant was assessed for autistic spectrum disorder and was diagnosed with Asperger’s Syndrome.
At the same time as the disciplinary process, the Respondent set out a proposal to restructure the department the Claimant worked in. As part of the restructuring, the Claimant accepted redundancy on the grounds that the disciplinary proceedings would be stopped. Following this, the Claimant submitted a claim for unfair dismissal and disability discrimination.
The Tribunal considered the Claimant’s diagnosis of autism against the definition of disability under the EqA set out above. It concluded that the Asperger’s was not “substantial” and therefore the Claimant did not have a disability under the EqA. The Tribunal put significant emphasis on the Claimant’s ability to do certain things and made comparisons between the Claimant and the general population:
“Whilst Mr Elliott reports that he does not find it easy to speak in public or to socialise for example and whilst he clearly has to prepare mentally for doing these things, he clearly is not prevented from doing them or substantially adversely impacted when he does them.”
The Claimant appealed against this decision, arguing that the Tribunal had failed to consider the impact of his impairment on his ability to carry out day-to-day activities and focussed too heavily on what he was able to do in comparison to others. It was also argued that various activities the Claimant struggled to do, such as accepting operational changes at work, were not considered.
The EAT allowed the appeal against the Employment Tribunal’s decision, finding that the Tribunal had not adopted the correct approach when determining whether the Claimant’s impairment had a substantial adverse effect on his ability to carry out normal day-to-day tasks.
The comparison should not be with the general population as a whole. The correct method is to look at how the Claimant carries out an activity compared to how he would if he were not experiencing the impairment. The Claimant could be just as good at an activity as most people, but this would not matter if, but for the impairment, he would have been able to perform the activity to a much higher standard.
The EAT remitted the question of whether the Claimant was disabled to a new hearing.
It is important to adopt the correct approach when considering disability under the EqA. The first point to note is that the term “substantial” is deceiving as it does not, in reality, mean anything so strict as its ordinary definition – it is defined merely as “more than minor or trivial”. Secondly, the focus of the test is on what the Claimant cannot do as a result of the impairment, as opposed to what they can do. Finally, comparison is not to be drawn between the Claimant and the general population when assessing whether they are substantially impaired. The Claimant’s own personal abilities with and without the impairment should be looked at instead.
This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Sophie Hay or Rachael Lloyd to discuss any issues you are facing.
