The question of whether a person needs to have a formal diagnosis at the time they have been subjected to discrimination, has been a long-standing dilemma for employers and often interpreted in a way by employers as an excuse for their refusal to make reasonable adjustments for their employees. However, In the recent case of Bennett v MiTAC Europe Ltd, the disability in question in this case being cancer, the employmen appeal tribunal clarified the position by ruling that "if a person does have cancer, and the employer believes that to be the case, disability and knowledge can be established before a medical diagnosis has been obtained."
Section 6 of the Equality Act 2010 defines a 'disability' as a physical or mental impairment, which has a substantial and long-term adverse effect on the individual's ability to carry out normal day-to-day activities.
An individual has an 'impairment' if their physical or mental abilities are reduced in some way compared to others. It could be the result of a medical condition - like arthritis in their hands that means that they can't grip or carry things as well as other people. However, an impairment doesn't necessarily have to be a specifically diagnosed medical condition for the purpose of bringing a claim.
It is however also important to note that conditions including aancer, HIV, multiple sclerosis and a visual impairment (if someone is certified as blind, severely sight impaired, sight impaired or partially sighted) are automatically considered to constitute disabilities under the Act regardless of the test set out above.
As for all other impairments, it is important for employers to look at how a particular impairment affects the employee on a daily basis rather than what the impairment actually is. An employer must not make assumptions as to whether their employee does in fact have a disability or not or whether it is diagnosed or not, as long as an employee can demonstrate that the said impairment has a substantial and long-term adverse effect on their ability to carry out day-to-day activities. Such is enough to satisfy section 6 of the Equality Act 2010.
An example of when someone may be found to have a disability without a diagnosis includes where an individual has been struggling with day-to-day tasks, for example due to a recent loss of a close family member or friend. They may often struggle to do things like getting dressed, cooking and talking to people. This individual may not have been diagnosed with a medical condition such as depression but they are experiencing symptoms of such. This could mean that this individual has a disability if they can show it's having a long-term and substantial adverse effect on their ability to carry out day-to-day activities. In this situation, an employer might reasonably be expected to recognise that this individual is likely to have a disability in the long term and should focus on providing support to their employee. This could include making reasonable adjustments for them in their working environment.
If an impairment is affecting an individual on a day-to-day basis, the first step is to speak to their employer about this and explain the extent of their difficulty in order to discuss potential assistance/reasonable adjustments to be put in place for them to assist. If that does not provide them with a satisfactory outcome and they have explored the internal complaints/grievance procedures accordingly, they may then benefit from seeking legal advice with a view to seeking resolution.
By Rimsha Qayyum, graduate paralegal