Factsheet: Is Your Employee Disabled Under the Equality Act?

It is vitally important to know whether a member of your staff is a disabled person for the purposes of the Equality Act. If they are, you have obligations to make reasonable adjustments and not to discriminate against them in other ways under the Act.

Some conditions are expressly deemed to be disabilities for Equality Act purposes. In such cases the complexities of the normal Equality Act definition of disability are bypassed.

Deemed disabilities are:

• Blindness, severe sight impairment, sight impairment and partial sightedness (provided this is certified by a consultant ophthalmologist)
• Severe disfigurements
• Cancer, HIV infection and multiple sclerosis

Certain impairments are explicitly excluded:

• Seasonal allergic rhinitis (hayfever)
• Tattoos and ornamental body piercings
• Various anti-social personality disorders – a tendency to set fire to things, physical or sexual abuse, voyeurism or exhibitionism
• Addictions to alcohol, nicotine or other substances are not covered unless the addiction was originally the result of medical treatment or medically prescribed drugs, e.g. valium or other tranquillisers and sleeping pills

In all other cases, the statutory test applies. This states:

“A person (P) has a disability if (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”

1. Is there a physical or mental impairment?

“Impairment” does not equate with a medical condition. It is a functional concept. The emphasis of the definition is more on the fact that the ability to carry out normal day-to-day activities is impaired, than on the precise name of the “impairment”.

Physical impairment includes sensory impairment and severe disfigurement. Mental impairment can include dyslexia and other learning difficulties, as well as mental illness such as depression.

2. Does the impairment have an effect on your employee’s ability to carry out normal day-to-day activities?

There is Guidance that explains what is meant by “normal” activities. It means activities carried out by most people fairly regularly, e.g. shopping, reading, writing, having a conversation, watching TV, getting washed and dressed, cooking and eating, housework, walking, travelling (including public transport), and taking part in social activities. An activity need not be carried out by the whole population for it to be a normal daily activity. For example, it is normal to travel on the tube or by aeroplane, put on make-up or use hair rollers.

3. Is the effect substantial?

A “substantial” adverse effect simply means an effect which is something more than minor or trivial. It is possible that the impairment will not have a substantial adverse effect on any single one activity, but may have a minor effect on several of them which adds up to “a substantial adverse effect on the person’s ability to carry out normal day-to-day activities.”

Importantly where the effect of the impairment is reduced or controlled by medication, medical treatment or an aid, its impact should be measured as it would be without such medication.

4. Is the substantial effect long-term?

The substantial adverse effect must also be long-term, i.e. have lasted or be likely to last 12 months or for the rest of your employee’s life if less than 12 months.

Additional consideration needs to be given in cases where there are recurring conditions or more than one condition that affects activities. Finally, someone who had a disability in the past is also covered by the Act.

If you have information that indicates that one of your employees may be covered by the Equality Act, it is best to explore this with them. They may not even consider themselves to be disabled but that does not mean that you could use this as a defence to show you had not discriminated under the Equality Act.

For expert Employment Law advice contact us today on 01273 609911, or email info@ms-solicitors.co.uk.