Proving the existence of disability

To have a disability, an individual’s condition must have a substantial impact on their ability to carry out day-to-day activities. It is for the tribunal to decide whether a claimant satisfies the statutory test for disability. Even if a medical expert writes in a medical report that an individual is disabled for the purposes of the EA 10, this does not mean the tribunal will necessarily agree.

Unless an employer admits that a worker is disabled, a tribunal will normally expect to see expert medical evidence of disability, and this needs early and careful consideration by disabled workers and reps. Any expert report needs careful checking, to make sure it covers all aspects of the statutory test.

Tribunals expect parties to cooperate in arrangements for expert medical evidence on disability, if possible using a jointly appointed expert. It has issued guidance on best practice in a case known as de Keyser v Wilson [2001] IRLR 324. Failure to cooperate is likely to result in an “unless order” and eventually to the dismissal of the claim (GCHQ v Bacchus UKEAT/0373/12/LA) (see Chapter 1).

As well as an expert medical report, tribunals will expect to see copies of relevant confidential health records, for example occupational health reports, GP letters, medical history and so on.

An individual does not have to have been disabled for as long as a year to claim, provided that at the date the discriminatory act took place, the disability was likely to last at least a year or is recurring (Greenwood v BA [1999] IRLR 600).

The need to satisfy the statutory test for disability on the date of the discriminatory act is well illustrated by the following case: