13 November 2012

How far does the definition of 'Disability' go?

How far does the definition of 'Disability' go?

Deciding whether or not an employee falls within the legal definition of a disabled person is notoriously difficult for HR personnel and business owners alike. The Equality Act 2010 (EQA) defines a person as being disabled if they have:

(a) A physical or mental impairment and

(b) The impairment has a substantial and long-term adverse effect on the person's ability to carry out normal day-to-day activities.

However, is it sufficient for a person to have a life-long condition which makes them more prone to infections, which is controlled by medication, and which infections have once in the past caused substantial adverse effects on their ability to carry out normal day-to-day activities?

The recent Employment Appeals Tribunal (EAT) of Sussex Partnership NHS Foundation Trust v Norris provides us with some guidance when looking at employees that fall within the above scenario.

Background

The issue of whether at the material time the Employee was a disabled person within the meaning of the Equality Act 2010 (EQA) arose as a result of the Employers' withdrawal of a job offer for a 'Team Administrative Co-ordinator'. The Employee argued this was due to her reference referring to her Selective IgA Deficiency. The Employee had previously been employed by the Trust; she had resigned in July 2010.

The Employee had been diagnosed with Selective IgA Deficiency ('her condition') in 1997. Selective IgA is a defect of the immune system. The usual symptoms of the condition are suffering from recurrent diarrhoea and upper respiratory infections.

Between July/August 2007 and November 2007 the Employee had a period of sickness absence relating to her condition. During this period she was unable to get out of bed for several days due to fatigue, go to work, go shopping and undertake house work such as cleaning and vacuuming.

Apart from the above mentioned period her condition was controlled by medication and although between November 2007 and July 2010 she had suffered from infections, they did not cause her the symptoms as suffered between July/August-November 2007.

The Employer agreed that the Employee had a physical impairment within the meaning of the Equality Act 2010 (EQA) however denied that she was a disabled person within the meaning of that Act.

The Employment Tribunal (ET) decision

Based on the evidence that was heard by the ET panel, it was concluded that the Employee's condition did not have a 'substantially adverse effect' on her ability to 'carry out day-to-day activities', but her condition did amount to a disability because if her medication was disregarded:

1. She would be more susceptible to infections due to her condition and she would be less able to recover than someone without her impairment;

2. Infections are more likely to occur which will then result in a substantial adverse effect on her ability to carry out day-to-day activities namely getting to work, shopping, housekeeping and walking;

3. Although the effect of the impairment was not long-term it was 'likely' to recur.

EAT decision

The EAT disagreed on the following basis:

1. In respect to the 'deduced effect' the ET failed to consider the material question of whether increased infections would themselves have a substantial and adverse effect on the Employee's ability to carry out day-to-day activities and  

2. There was insufficient evidence before the ET to conclude that the substantial adverse effects suffered by the Employee from July/August 2007 until November 2009 were "likely" to recur. The case law in respect to this is clear that "likely" means "could well happen" rather than "possible" or "more likely than not".

The issue was remitted for a re-hearing with a different ET panel.

Conclusion

When dealing with a scenario where an employee has a lifelong impairment which is now controlled by medication, but has historically had a substantial and adverse effect on their ability to carry out day-to-day activity, obtain medical evidence to ascertain:

1. Whether the 'effect' of the impairment would itself amount to having a substantial and adverse effect on the employees ability to carry out day-to-day activities and 

2. The likelihood of the recurrence of the historical substantial and adverse effects on the person's ability to carry out day-to-day activities.

If the medical evidence is supportive of both questions (1) and (2) then the employee is likely to fall within the definition of being a disabled person under the EQA.