Disability discrimination

As employment law experts based in Maidstone, people often ask us what is meant by disability for the purposes of alleging disability discrimination.

Under the Equality Act 2010 (“the EqA 2010”), it is illegal to discriminate in employment based on any of the following protected characteristics:

• Age
• Disability
• Gender reassignment
• Marital or civil partnership status
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation

So, in this article, we will focus on the meaning of disability when seeking to allege disability discrimination. 

Please note that the guidance given below should not replace legal advice. We intend for this to summarise the legislation surrounding what is meant by disability.

What is meant by disability?

In order to assert disability discrimination, a claimant must first prove that they (or perhaps someone else they care for) have or had (or are perceived to have or had) a disability at the relevant time.

The law expressly defines some conditions as disabilities (such as cancer or MS). Furthermore, it also expressly excludes some others (such as voyeurism).  However, for many conditions, a claimant must demonstrate that their illness meets the definition set out in Section 6 and Schedule 1 of the EqA 2010. 

The definition set out in the EqA 2010 is as follows:

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 his ability to carry out normal day-to-day activities.

(Section 6(1))

What must a claimant show to prove they have a disability?

There are four key questions a claimant will need to be able to address to establish that their condition meets the statutory definition:

Does the claimant have a physical or mental impairment? 

There is no further definition as to what this element of the statutory test means, but case law has established that impairment bears its ordinary and natural meaning.

Does the claimant’s physical or mental impairment have an effect on their ability to carry out normal day-to-day activities?

As indicated, the impairment being relied upon must impact a person’s ability to carry out normal day-to-day activities.  Advice as to what is meant by this is provided in the guidance notes, which should be read alongside the EqA 2010 (“the EqA 2010 Guidance”).  The EqA 2010 Guidance states that:

“In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities.” (Paragraph D3)

Is the effect substantial?

This can be a difficult question to respond to, although the EqA 2010 defines substantial as meaning more than minor or trivial. 

The EqA Guidance and case law also assist us with considering this point.

Is the effect long-term?

Finally, along with showing an impairment’s impact on a claimant, it is also necessary to show that the impact is long-term.  The EqA 2010 helpfully defines this and provides the following:

The effect of an impairment is long-term if:

(a) it has lasted for at least 12 months,

(b) it is likely to last for at least 12 months, or

(c) it is likely to last for the rest of the life of the person affected.”

(Section 2(1))

There may be some overlap when addressing the above questions, but it is necessary for each question to be considered and responded to in order to establish that a claimant has a disability. 

In most cases, medical evidence, such as GP records or consultant letters, will need to be disclosed to support a claimant’s responses to each of the above questions.

If you would like more help on this topic, please contact us.