Hello and welcome to this week’s case of the week. Today we’re looking at the definition of disability, and particularly the correct approach to determining whether someone’s impairment has a substantial and adverse effect on their ability to carry out day to day activities.
The Claimant was employed by Dorset Council as a Geographical Information Systems Manager. He was in the role for 34 years. In 2018, he was subject to a disciplinary hearing for allegedly falsely recording his working times.
He denied the allegations, claiming to the contrary that he worked longer than his contracted hours, and often worked late into the evening. During the disciplinary proceedings, the Claimant’s trade union representative suggested he be assessed for autistic spectrum disorder (Asperger’s). Following consultation, he was diagnosed with the condition. His symptoms can broadly be described as:
“… unflinching honesty; difficulty processing other people’s emotions; struggling to assimilate verbal/non-verbal communication; difficulty with back and forth conversation; finding it difficult to cope with changes of plan; black and white thinking, and taking people very literally; and, procedural compliance and dislike for any digression from rules, established policy or procedures.”
At the same time, the Respondent published a proposal to restructure his department. The Claimant accepted redundancy on the grounds that doing so would discontinue the disciplinary proceedings. He subsequently submitted a claim for unfair dismissal and disability discrimination.
Employment Tribunal Decision
The tribunal met to consider the preliminary point of disability. For a person to be disabled under the Equality Act 2010, they must 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 tribunal considered that the Claimant’s Asperger’s was not substantial. It relied heavily on comparisons between his ability to do certain things, and the general population’s ability to do those things:
“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.
He is also on his own evidence not somebody who finds it substantially harder to do these things than others do. Many people find public speaking and socialising difficult and many people adjust their behaviour in order to manage these occasions.”
The Claimant appealed on the ground that the tribunal had failed to consider the effect of his impairment on his ability to carry out normal day to day activities, instead focusing on what he could do in comparison to other people. They also stated that the judge had not properly considered a number of the activities the Claimant was affected in doing, such as coming to terms with procedural change in the workplace.
Employment Appeal Tribunal
The EAT reminded us that the correct approach is to consider how the Claimant carries out the activity compared with how he would do if not suffering the impairment. The comparison should not be with the population at large. Thus, it is irrelevant if the Claimant is just as good at something as most people. All that matters is whether their impairment has a substantial effect on their ability to carry out normal day to day activities. If, but for his impairment, the Claimant would have been a highly paid after dinner speaker, the tribunal was entitled to find that it had a substantial and adverse effect on his ability to carry out that activity.
In any event, the EAT held that the tribunal failed to properly consider the nature of the Claimant’s case: it focussed too much on certain day-to-day activities, such as socialising and public speaking, and did not properly consider his difficulty in coming to terms with things such as procedural changes. The case has now been remitted to the tribunal for a reconsideration on the point of disability.
It is important to remember the correct approach to determining disability. The question to ask is not whether the Claimant is substantially disadvantaged in carrying out some activity in relation to the general population, but rather whether their impairment has a substantial adverse effect on their ability to carry out normal day to day activities. Also good to remember is that the phrase “substantial” doesn’t really mean that. The Equality Act defines it as “more than minor or trivial”, meaning the bar is considerably lower than the word substantial might imply.