Disability

Legislation to prevent disability discrimination is intended to remove barriers, mental as well as physical, to the full participation of disabled people in society, including in the workplace. In 2013, the ECJ ruled that the EU Framework Directive on which the EA 10 is based must be interpreted in line with the United Nations Convention on the Rights of Persons with Disabilities (HK Danmark v Dansk almennyttigt Boligselskab [2013] EUECJ C-335/11). This UN Convention recognises disability as an “evolving concept” and focuses, in particular, on “attitudinal and environmental barriers” to full participation.

Perhaps inevitably, disability claims under the EA 10 usually involve a great deal of focus on the claimant’s medical condition. Under section 6 of the EA 10, a person has a disability 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”.

• a condition is “long term” if it has lasted for twelve months, is likely to last at least twelve months, or for the rest of the affected person’s life.

• “substantial” means “more than minor or trivial” (section 212(1) EA 10). In other words, if something cannot be regarded as “trivial”, then it will be substantial (Aderemi v London and South Eastern Railway Limited [2012] UKEAT/0316/12/KN).

To succeed in a claim, each separate part of the definition of disability must be satisfied.