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 the job of the tribunal to decide whether a claimant satisfies the statutory test for disability. Even if a medical expert writes in their report that an individual is, or is not, definitely disabled for the purposes of the EA 10, this does not mean a tribunal will necessarily agree.

A tribunal will generally expect to see expert medical evidence in support of a claim for disability discrimination. Any expert report should be checked carefully to make sure it covers every aspect of the statutory test.

Tribunals expect parties to cooperate in arrangements for expert medical evidence on disability, if possible using a jointly appointed expert. The EAT has issued guidance on best practice, in a case known as de Keyser v Wilson [2001] IRLR 324. Claimants should be encouraged to cooperate where they can with arrangements for organising expert medical evidence. An unreasonable failure to cooperate could lead to an “unless order” (see page 36), an order to pay some or all of the employer’s costs, and even the dismissal of the claim (see Chapter 1).

As well as an expert medical report, a claimant will have to reveal their confidential health records, for example, occupational health reports, GP letters, medical history and so on to the employer and the tribunal. The claimant’s own witness statement will need to explain the effect of their condition on their ability to carry out day-to-day activities.

A claim for disability discrimination can only succeed if the claimant was disabled at or before the date of the employer’s discriminatory act. The fact that someone has a disability by the date of the hearing will not help them if they cannot show that they were disabled when the employer carried out the acts that gave rise to the claim.

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