Definition of disability

The Equality Act 2010 (EA10) makes it unlawful to discriminate against disabled people who 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, requiring reasonable adjustments to be made.

The definition is important so union reps should consider that aspect of any case carefully. Certain conditions are deemed to be a disability. Someone with cancer, HIV or multiple sclerosis is protected automatically on diagnosis; the same applies to those who are blind or partially sighted, or have severe disfigurements (for example, scars, birthmarks, limb or posture deformation or skin diseases excluding tattoos or body piercings).

There are also special rules about progressive conditions, recurring conditions, conditions that can be corrected by medication or treatment, and the EA10 protects someone who was disabled in the past who has since recovered:

• the term “impairment” is not defined by the Act but has a functional meaning and focuses on what someone cannot do, not on what they can (Aderemi v London and South Eastern Railway Limited [2012] UKEAT/0316/12/KN);

• “substantial” means more than “minor or trivial”;

• the meaning of “long-term” is set out at Schedule 1, paragraph 2 of the EA (it has lasted for 12 months, is likely to last for 12 months, or is likely to last for the rest of the life of the person affected);

• “normal day-to-day activities” are not listed so it would be up to the person involved to produce evidence that their own normal day-to-day activities are substantially adversely affected;

• claims under the Act are likely to fail if a worker does not inform their employer about their disability (some disabilities, especially mental health conditions, may be less obvious than others);

• “reasonable adjustments” (see below) must raise prospect of return to work.

Successfully applying the definition of disability is not straight forward, even for an employment tribunal:

The issue of disability and sickness absence could arise in a case of obesity. The European Court of Justice has ruled that there is no general provision in EU law that would prohibit discrimination on grounds of obesity. However, it can amount to a disability if it entails “a limitation resulting in particular from long-term physical, mental or psychological impairments” which might hinder “full and effective participation in professional life on an equal basis with other workers”. Where that is the case it does not depend on the origins of the disability (Kaltoft v Municipality of Billund, December 2014).