The legal definition of disability can be found in section 6 of the Equality Act 2010. The Act states:
- A person (P) has a disability if-
- P has a physical or mental impairment, and
- The impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.
In order to be considered a disability under the term of the Act, the impairment, whether it be physical or mental, must have lasted/or be likely to last for 12 months or longer.
So what happens if you have been diagnosed with a progressive condition?
When initially diagnosed, many progressive conditions can be managed without being considered to have a substantial and long-term adverse effect on the individual’s normal day-to-day activities. Therefore it would seem that as the condition could not be considered as having a substantial and long-term adverse effect on an individual's day-to-day life it could not be considered a disability under the provisions of the Equality act 2010.
This was the initial determination in the case of Taylor v Ladbrokes Betting and Gaming Ltd. In this case, the claimant, Mr Taylor, who suffered from type two diabetes was dismissed by his employer for alleged incapacity or misconduct on 4 November 2013. Following this, he alleged both unlawful disability discrimination and unlawful dismissal. The employment judge, sitting at Birmingham Employment Tribunal, on 28 April 2015 ruled that the claimant, Mr Taylor, was not considered to be disabled under the terms of section 6 of the Equality Act 2010. The reason given was, since the claimant's diagnosis was fairly recent and at the time, a medical expert deemed that even in the absence of his medication, the claimant's condition would not have an adverse effect on his ability to carry out day-to-day activities. It was therefore the view of the judge that Mr Taylor’s condition at the time would not satisfy the definition of disability under section 6 of the Act.
Mr Taylor appealed the decision and the case was heard in the Employment Appeal Tribunal, which held that the test under the Act had been misapplied. The test that should have been applied to determine whether or not Mr Taylor would be considered disabled for the purposes of section 6, was whether the condition was likely to result in an impairment. Therefore, due to the progressive nature of type two diabetes, it could have been deemed to amount to a disability. Despite that at the material time the condition was not understood to have a substantial effect on Mr Taylor, the position was that as long as the condition was likely to have such a result, it would be considered a disability for the purposes of section 6.
The EAT allowed the appeal and directed that the case be referred back to the original employment judge for reconsideration.
It is therefore understood that the Employment Tribunal are to be mindful when making a determination as to whether a claimant can be considered to be disabled, if the condition will have a substantial effect on individual’s day to day life.
If you feel that any of the above is relevant to you or you have been subjected to discrimination due to a disability please get in touch with our specialist discrimination team for advice and assistance.
If you feel that you have been subjected to discrimination, regarding a disability, please contact our specialist discrimination team for further advice on 01616 966 229.
By Hannah Wilson, employment and discrimination advisor