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What do you need to establish to prove disability under the Equality Act 2010?

View profile for Emily Yeardley
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To be considered disabled, you must have a physical or mental impairment that has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities.

People who suffer from cancer, HIV or multiple sclerosis are automatically disabled. However, those suffering from other impairments will need to meet the definition under the Equality Act 2010.

What evidence might you need to establish disability?

In the recent case of Hannon v Organic Insurance Limited, the employment tribunal held that an insurance broker Anthony Hannon, who argued that he suffers from Attention Deficit and Hyperactivity Disorder (ADHD), did not meet the definition of disability under the Equality Act 2010. His employer, Organic Insurance disputed that he was disabled, and a preliminary hearing was listed to determine the issue of disability, prior to proceeding to a full hearing.

Hannon provided an impact statement in support of his contention that he was entitled to the protections under the Equality Act 2010. His statement cited difficulties faced since being at secondary school and in carrying out domestic duties. His medical records were disclosed but the tribunal found that there was no diagnosis within his records. Whilst a diagnosis is not necessary to establish disability, the tribunal held that in the facts of this case, it was required and can, of course, provide useful evidence of disability.

A medical assessor suggested that Hannon did not have conclusive symptoms of ADHD but may be suffering from an Autistic Spectrum Disorder affecting his mood and behaviour. It was suggested that a further assessment would need to be carried out, therefore, no official diagnosis was received.  

The employment tribunal concluded that there was insufficient evidence (from the impact statement, medical records and his oral evidence) to demonstrate that Hannon’s impairment had a substantial adverse effect on his ability to carry out day to day activities and he, therefore, did not satisfy the definition of disability. Hannon could not pursue his claim of disability discrimination.

What does it mean if you meet the definition of disability under the Equality Act 2010?

If you meet the definition of disability under the Act, your employer has a duty to make reasonable adjustments to ensure you are not disadvantaged in the workplace, by removing or reducing any barriers that a disabled worker or job applicant may face. A "reasonable" adjustment depends on the size of the organisation and the resources available to the employer. It could include installing a ramp to enable wheelchair access into the office or modifying an employee’s performance target in line with what is realistically achievable.

If an employer does not make reasonable adjustments and the disabled employee is disadvantaged, the employer may be found liable for disability discrimination, and the employee could pursue a claim in the employment tribunal.

Comment

This case illustrates that employees must provide evidence of the impact of the impairment on their day-to-day activities to demonstrate that the impairment has a substantial adverse effect. Failure to do so will prove fatal to a claim of disability discrimination where disability is disputed.

If you or someone you know is experiencing issues in the workplace, or you would like to discuss this article in more detail, please do not hesitate to contact a member of the Employment team.

This article is not a definitive statement of the law. It is designed as a free update on the law at the time of publishing. It is not a substitute for legal advice on specific facts and circumstances. BakerLaw LLP and/or the writer accepts no liability or responsibility for reliance on this article and recommends that you seek independent legal advice on your specific circumstances prior to taking any steps.

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