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Disability Discrimination: The interpretation of “substantial” effect

Senior Associate Solicitor, Alexandra Besnard

The Employment Appeal Tribunal (“EAT”) in the case of Mr A Elliott v Dorset County Council, has considered to what extent an impairment has to have a substantial adverse effect on an individual’s ability to carry out day to day activities to be considered a disability in law.

Background

The Claimant was employed by Dorset County Council (“the Respondent”) as a Geographical Information Systems Manager. The Claimant was subject to disciplinary proceedings by a new line manager who alleged that he was falsely recording his time, recording more hours than he worked. The Claimant contended that he had an agreement with his previous line manager on how he would record his time of which he was complying with. Prior to a specialist assessment into the Claimant’s potential disability and before the disciplinary investigation was completed, the Claimant was offered voluntary redundancy which he accepted.

During the incomplete disciplinary investigation and after the claimant was dismissed, the Claimant was assessed by a specialist nurse to establish whether he fell within the autistic spectrum as a result of advice from his union representative. The Claimant was subsequently diagnosed with Asperger’s Syndrome. The Claimant brought a claim to the Employment Tribunal (“ET”) claiming disability discrimination.

The Law

A disability in employment law is defined under section 6 of the Equality Act 2010 (“the Act”). Under this provision, a person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on an individual’s ability to carry out day-to-day activities. The term “substantial” is defined by Section 212 of the Equality Act 2010 as “more than minor or trivial.”

Under the Act, it is unlawful for an employer to treat an employee less favourably because of a disability or because of something arising in consequence of a disability, whether by direct or indirect discrimination. The Act imposes a duty on employers to make reasonable adjustments for employees suffering from a disability and failure to do so is a form of discrimination under section 21 of the Act.

Decision

The ET concluded that the Claimant was not disabled as his impairment did not have a “substantial” adverse impact on his ability to carry out day to day activities. The claimant appealed the decision contending that the ET had erred in law, focusing on what he could do rather than taking into consideration what he was unable to do as a result of his disability.

The EAT upheld the Claimant’s appeal. The EAT concluded that unless an impairment is minor or trivial it will be considered to be substantial and the very fact that a person can carry out day to day activities does not mean that their disability is not substantial. The EAT held that Tribunals should focus on activities that a claimant cannot do or perform as opposed to the things they can do, the fact that an individual has established coping mechanisms to mitigate the effect of his/her impairment does not deny the fact that the individual is disabled in law.

This case has been remitted back to a fresh employment tribunal to decide on whether Mr Elliott is disabled in law.

Comment

This decision reiterates the law as it is, but it is a useful reminder for employers that they are obliged to consider how an individual performs an activity compared with how they would perform that activity if they do not suffer from a disability.

Employers should be mindful that just because some individuals can mitigate some of the effects of the disability does not mean their disability does not have an adverse effect on their day-to-day activities and employers should seek to implement reasonable adjustments as required.

Case reference: Mr A Elliott v Dorset County Council UKEAT/0197/20LA

 

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