Who exactly does the law consider ‘disabled’, is this soon to be changing, and what may this mean for employees and employers? R (Davey) v Oxfordshire County Council and beyond

The Equality Act 2010 defines who is ‘disabled’ for the purposes of UK disability discrimination law. It provides that a person is disabled if they have a ‘physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities’. In other words, for an individual to be considered disabled under the Act, their impairment must be both substantial in its effect on the individual’s ability to carry out normal day-to-day activities and long-term in its duration (the Act defining long term to mean having lasted or expecting to last a period of at least 12 months).

This definition however is somewhat at odds with an international treaty that the UK is signed up to: the United Nations Conventions on the Rights of Persons with Disabilities (CRPD) states that an individual is to be considered disabled if they have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. To spare you the headache that necessarily accompanies any attempt to untangle this definition, it basically represents a conceptualisation of disability that is much more liberal than that of the EQA’s. For example, the requirement for an individual’s impairment to be ‘substantial’ is not featured. Instead, the individual’s impairment must only ‘hinder’ them. Moreover, the individual’s impairment must only have an effect on their ability to participate ‘in society’ as opposed to the rather more restrictive ‘normal day-to-day activities’ (note that if an individual is affected by an impairment, they are affected ‘in society’, as everything is ‘in society’!).

The net result of all this pedanticism is that under the CRPD, considerably more people would be considered disabled as opposed to the current arrangements under the EQA. This could have the effect of subjecting employers to more disability discrimination claims; these added numbers being attributable to individuals who either would not have been considered disabled under the EQA, or did not want to go through the rigour that is often involved in establishing aspects of its definition such as the ‘normal day-to-day activity’ requirement which can necessitate invasive cross-examination into the claimant’s personal life.

As the UK signed up to the CRPD, it really should adhere to its aims. In fact, a committee set up by the UN to monitor the implementation of the CRPD suggested in 2017 that the UK review its legislation and policies in order to bring them in line with the CRPD’s definition.  However, this request seems to have fallen of deaf ears, as no action by the government has been taken in that respect.

Despite the (arguably characteristic) inaction of the government, it appears that hope has not been lost in terms of the UK’s compliance with the CRPD. A number of recent court decisions represent somewhat of a trend in claimant’s attempting to argue that the CRPD should be ‘directly enforceable’ (i.e. they should be able to rely directly on it as opposed to the UK’s own laws). A number of human rights organisations have also made the same case.

So, could this be the beginning of a change in the way we perceive disability, and therefore a change in the way employers need to consider their treatment of (even perhaps mildly) ‘impaired’ individuals?

Fortunately for employers, the answer has been a resolute ‘no’ from the courts. We shall kick things off with the 2017 case of R (Davey) v Oxfordshire County Council. The Equality and Human Rights Commission submitted that the UK had what is known as an ‘interpretative obligation’ to the CRPD, i.e. that they had to ‘consider it’ when employing UK law. Whilst they accepted this obligation, the attitude that the Court of Appeal took to the CRPD is best summed up by Bean LJ. He states that “…great care must be taken in deploying provisions of a convention or treaty which sets out broad and basic principles as determinative tools for the interpretation of a concrete measure such as a practical provision of a UK statute. Provisions which are aspirational cannot qualify the clear language of primary legislation.”

Evidently, Bean LJ was having none of it. This sentiment was echoed in 2019 by Judge Auerbach of the Employment Appeals Tribunal in the case of Britliff v Birmingham City Council, where he said in relation to another attempt to enforce the CRPD domestically: “the provisions of international treaties tend, in their very nature to be cast in generalised, principled and aspirational language directed at the adhering states themselves”.

Along came 2020, and with it the case of R (Leighton) v Lord Chancellor and yet another shot at employing the provisions of the CRPD in the UK. Justice Cavanagh (in the High Court) broadly echoed the sentiments expressed in R (Davey), again denying the treaty any form of legal power in the courts of England and Wales.

So, perhaps worrying about a radical change to the definition of disability is presently unwarranted. However, this area could certainly be described as ‘one to watch’ as we as a society begin to adopt a more liberal and inclusive conceptualisation of who we consider ‘disabled’ (as has been evidenced by the increasing awareness of mental health as a disability over the past few years).