EAT clarifies approach to assessing disability in neurodivergent job applicant case
A recent Employment Appeal Tribunal (EAT) decision offers important clarification on how tribunals should assess whether a neurodivergent individual meets the legal definition of disability.
Background
Under the Equality Act 2010, a person is considered disabled if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. 'Substantial' means more than minor or trivial, and “long-term” generally means the effect has lasted or is likely to last at least 12 months.
In Stedman v Haven Leisure Ltd, the claimant applied unsuccessfully for a role as an Animation Host. He had diagnoses of Autism Spectrum Disorder (ASD) and Attention Deficit Hyperactivity Disorder (ADHD), and brought claims of disability discrimination. At a preliminary hearing, the tribunal accepted that he had a mental impairment but concluded he was not disabled within the meaning of the Act. It found that the impairments did not have a substantial adverse effect on his ability to carry out normal day-to-day activities. The claimant appealed.
EAT decision
The EAT allowed the appeal and remitted the case to a new tribunal to reconsider whether the claimant was disabled under the Equality Act.
The key issue was that the original tribunal had taken the wrong approach. It had looked at the claimant’s abilities as a whole, weighing his strengths (such as academic success and public performance) against the areas where he said he struggled (such as forming social relationships or using crowded public transport). The EAT confirmed that this was incorrect. The legal test is met if the claimant’s condition has a substantial adverse effect, that is, more than minor or trivial, on even one normal day-to-day activity. Tribunals should assess each activity on its own, not balance areas of difficulty against areas of strength.
The EAT also highlighted that the right comparison is between the claimant’s abilities with their condition and how they would function without it, not against the general population.
Finally, the EAT clarified that a formal diagnosis of autism or ADHD is not just relevant to showing that someone has a mental impairment. It can also be strong evidence that the condition has a real impact on day-to-day functioning, and should be taken seriously when assessing whether the definition of disability is met.
Learning points for employers
This case illustrates how difficult it can be to challenge whether a neurodivergent individual falls within the statutory definition of disability. In practice, employers should often focus on identifying and implementing appropriate adjustments rather than becoming drawn into complex debates about disability status.
This is particularly relevant during recruitment, onboarding, and any early concerns about performance or conduct. Taking timely, proportionate steps to reduce disadvantage can help to minimise legal risk and support a more inclusive working environment.