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Disability Under the Equality Act - Determining If a Condition Has a 'Substantial' Adverse Effect

on Friday, 23 April 2021.

An Employment Tribunal (ET) failed to adequately consider whether an impairment had a substantial adverse effect on the claimant's ability to carry out normal day-to-day activities, in accordance with the Equality Act 2010 definition.

What Is The Definition of Disability Under the Equality Act 2010?

An employee will be protected under the Equality Act 2010 by virtue of a disability where they suffer from 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.

Elliot v Dorset County Council

Mr Elliott worked for Dorset County Council and was subject to disciplinary proceedings after his new line manager alleged that he had been recording more hours than he had worked. Mr Elliot found it difficult to work with his new line manager as he previously had an understanding with his old line manager as to how he would log his hours. Mr Elliot would record the standard working hours of 9 to 5, irrespective of the specific hours he worked as he often worked later into the night at home rather than only during the day at the office.

During the disciplinary proceedings, Mr Elliot was diagnosed with an autism spectrum disorder and Asperger's syndrome. The traits associated with these conditions included finding it difficult to cope with changes of plan, procedural compliance and dislike for any digression from rules, established policy or procedures. Mr Elliot subsequently brought a claim for disability discrimination. However, the Employment Judge concluded that Mr Elliot was not disabled as his impairment did not have a 'substantial' adverse impact on his ability to carry out day-to-day activities.

Defining 'Substantial'

Mr Elliot appealed to the Employment Appeal Tribunal (EAT) and the EAT remitted the question of whether Mr Elliot was disabled to a new ET. The EAT found that the ET had failed to adopt the correct approach in determining whether the Mr Elliot's impairment had a 'substantial' adverse effect on his ability to carry out normal day-to-day activities.

The EAT held that the statutory definition of substantial, further defined as "more than minor or trivial" in the Equality Act should prevail over any other guidance such as the Equality Act 2010: Guidance on Matters to be Taken into Account in Determining Questions Relating to the Definition of Disability and the Equality Act 2010 Code of Practice.

The guidance or code suggests that the meaning of 'substantial' reflects the "general understanding of disability as a limitation going beyond the normal differences in ability which may exist amongst people", however the statutory meaning goes further than that and takes precedence. Where it is necessary to take account of the guidance or the code, this requires a comparison with people who are broadly similar to the claimant, save for having their alleged disability.

The EAT also held that focus should also be placed on what a disabled person cannot do rather than what they could or cannot do with difficulty. This requires an assessment of what the concerned individual's day-to-day activities are in order to determine whether they could be carried out.

How Does This Affect Employers?

This case provides helpful guidance on the application of the Equality Act 2010 definition of a disability, and employers should be mindful that the statutory definition of 'substantial', meaning 'more than minor or trivial', is a relatively low bar to meet.

Employers should be aware of the Equality Act 2010 definition of a disability, and ensure they are providing the relevant support and any reasonable adjustments to those who may be considered disabled to mitigate the risk of discrimination claims.


If you need any assistance regarding any disability issues or claims, need any training or policies updated, our employment team can help. Please contact Ellie Boyd in our Employment Law team on 07393 148143, or complete the form below.

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