One of the easiest traps to fall into when advising workers with health concerns is to make quick judgements that they are disabled as soon as one hears a medical diagnosis. So, frequently you will hear complaints from an individual that they have depression, migraines, back pain etc and in each case the assumption is that they are disabled. It is both really easy to do and also a mistake.
Occasionally, the assumption will be automatically correct in that any person who has (or had) certain medical conditions will be a disabled person without any further evidence of impairment required. Any worker with HIV, Cancer, or Multiple Sclerosis will be a disabled person (Schedule 1, para 6 of the Equality Act 2010). Likewise, a person registered by a Local Authority as, or certified by an ophthalmologist as blind or sight impaired will also be a disabled person (Reg 7 of Equality Act 2010 (Disability) Regulations 2010). Finally, if a person has a “severe facial disfigurement” then that disfigurement will automatically meet the normal requirement that the impairment has a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities (but not that it is long term).
Other than that, there are no “automatic” disabilities. A worker must establish that that they meet the each of the requirements set out in section 6 of the Equality Act except where the impairment is progressive but not yet having a substantial affect, in which case the test is that set out in Schedule 1, para 8 of the Equality Act 2010. Any health impairment (except the deemed disabilities highlighted above) is not dependent on what their diagnosis is, or even if there is a diagnosis, but on how that impairment affects the individual’s ability to complete normal day to day activities. This is a change in the law from the Disability Discrimination Act 1995 (DDA) and the Equality Act because under the DDA a mental impairment had to be a “clinically well recognised illness”.
By way of example, yesterday the BBC ran a news story on a Welsh woman who has suffered her whole adult life with an unknown condition (a so-called SWAN – Syndrome Without A Name). Some years previously the BBC ran a different story on a teenager who frequently experienced regular bleeding of the eyes, ears, and fingers but with no known underlying medical cause. The cases are helpful in highlighting that despite the lack of diagnosis upon reading details on how this has affected them over the long term it is very likely that they would both meet the statutory definition of disability.
Normally, of course, the impairment will be linked to a recognised medical impairment and such cases are certainly easier to both evidence and pursue but the important thing for worker’s is not ‘what is the medical impairment?’ but “how does the physical or mental impairment adversely affect me in how I live by daily life (or would without the impairment)?’
Or, as the Employment Appeal Tribunal put it in Walker v Sita Information Networking Computing Ltd (2013):
The purpose of the definition of disability is not to confine an impairment to that which can be shown to be given a medical label which is either a recognised physical or mental condition: it is, rather, to describe the nature of the impairment.Paragraph 11 of the Judgment.
Sometimes, the impact on normal day to day activities are blatant and though not technically “automatic” in a legal sense they are close to being so practically speaking; thus, a person who has an amputated leg will find physical mobility adversely affected (a physical impairment) and therefore find ascending stairs (a normal day to day activity) much more difficult than they would without the impairment. However, thinking about my own health conditions and union member experiences this can sometimes be more difficult to narrow down. It is part of the human condition to ‘acclimatise to obstacles and adapt your life accordingly to avoid situations where difficulties arise or simply get used to them. When that happens explaining how day to day activities affect you when put on the spot can be difficult. One of the ways I have found to do that (assuming appeal or ET time limits are not looming!) is to ask the individual to carry around a notebook or note app and on a daily basis think about everything done – did a person find doing something more difficult, have to change how they did things (e.g., send make a call instead of an email), of find doing anything painful? If not a definitive statement of disability this will reveal ways an impairment affects you which, without reflection, may not be immediately apparent because they become accepted as “business as usual”.
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