The definition of disability
An employee cannot bring a disability claim without demonstrating that he or she has a disability. No disability, no disability discrimination. In some cases disability will not be in dispute â€“ namely where there is a so-called â€œautomaticâ€ disability â€“ cancer, MS, HIV, severe sight impairments. In all other cases itâ€™s about showing not that you have a clinically defined illness â€“ thatâ€™s not enough â€“ itâ€™s about the impact on you. No impact, no disability, in a nutshell. And of course the impact has to be substantial and long-term. Itâ€™s no small feat meeting the definition but still a lot of claimant employees, and employers for that matter, think that as long as thereâ€™s an illness which is long-term it is a disability. So do many OH advisers, HR advisers and medical practitioners. Not so! Illness does not equate to disability. There are more hurdles.
Disability is defined at section 6 of the Equality Act 2010 but the definition there is typically broad and apparently simple. It is anything but. What this means is that there is actually a lot of misunderstanding about what disability is. I aim to clarify.
Firstly, there must be an impairment. It can be mental or physical or both. Impairment means what it says on the tin. A person is impaired. It doesnâ€™t mean the impairment has to be a clinically well-recognised disorder. You might not even be able to label it but it can still be an impairment.
The impairment must have a substantial effect on the person. Some people might have what could be viewed as a serious illness but it might not have an impact on their daily life. If it doesnâ€™t there wonâ€™t be a disability.
Long-term is the part of the definition most people seem to understand best. Long-term means it has lasted or is likely to last twelve months or more or it might be life-long. The critical thing to remember about long-term is was the impairment assessed to be long-term when the discrimination is alleged to have occurred? If it was not the claimant cannot later rely on the fact that it has become long-term after the fact. Thatâ€™s where it gets tricky.
Finally the impact must affect normal day to day activities. This part of the definition has been the subject of a number of cases over the years. The upshot however is that this is increasingly being given a broader definition to cover some work activities that would not have been covered under the DDA. The cases on definition continue to turn up surprising results. Check Sussex Partnership v Norris on the blog.
The most pressing issue around definition of disability right now is whether obesity is a disability. With 64% of the UK workforce said to be obese a finding by the European Court that obesity is a disability could have wide-reaching implications. The EAT recently held in Walker v Sita that obesity is not a disability in itself but might be capable of being one if there is a significant degree of functional impairment.
The ECJ is hearing Kaltoft v Billund Kommune as I write. Watch this space!