Statutory guidance on the meaning of disability

The Office for Disability Issues published revised statutory guidance in May 2011, Guidance on matters to be taken into account in determining questions relating to the definition of disability. It is available on the website of the Equality and Human Rights Commission.

The guidance is an important resource for reps where there is any doubt as to whether the member has a disability. The Appendix contains a useful list of examples of what might be normal day-to-day activities. Where an employer challenges the existence of a disability, this can be one of the most difficult aspects of an individual’s claim.

The statutory guidance provides many examples of impairments that can lead to disability, including:

• sensory impairments, for example reduced sight or hearing;

• fluctuating or recurring conditions such as rheumatoid arthritis, myalgic encephalitis (ME), chronic fatigue syndrome (CFS), fibromyalgia, depression and epilepsy;

• progressive conditions, such as motor neurone disease;

• organ specific conditions, such as asthma or cardiovascular diseases;

• developmental conditions such as autistic spectrum disorders, dyslexia and dyspraxia;

• learning difficulties;

• mental health conditions and mental illnesses, such as depression, schizophrenia, eating disorders, bipolar affective disorders, obsessive compulsive disorders, personality disorders and some self-harming disorders; and

• conditions produced by a brain or body injury.

Some conditions, such as alcohol dependency and a tendency to commit arson, are excluded from the definition of disability. However, someone can be disabled even if the condition is caused by an excluded condition. For example, liver disease or depression can be a disability even if they result from alcohol dependency, which is outside the scope of the EA 10 (Hutchinson 3G v Mason [2003] UKEAT/0369/03).

A person can be disabled even if there is no firm diagnosis as to the cause of the condition. For example, someone with chronic back pain can be disabled even though doctors are unable to pinpoint its cause. In Aderemi v London and South Eastern Railway Limited [2012] UKEAT 0316/12/0612, a station assistant was dismissed by his employer after he started to suffer chronic lower back pain which eventually left him unable to stand for more than twenty minutes at a time or to do any bending or lifting. His back pain was a disability.

In Walker v Sita Information Networking Computing Limited [2013] UKEAT/0097/12, the EAT considered obesity. Walker weighed 21 stone and had many different mental and physical health problems, made worse by his weight. The EAT said that, while obesity is not a disability per se, its presence can make an impairment more likely to be a disability. This was confirmed by the ECJ in this case:

Obesity can also lead to claims based on perceived disability (see page 157), where an employer jumps to conclusions about an obese person’s health.

Someone can be disabled if they have a life-long condition that renders them susceptible to infection, if the repeat infections have a substantial adverse effect on their ability to carry out day-to-day activities (Sussex Partnership NHS Foundation Trust v Norris [2012] UKEAT/0031/12/SM).

In Metroline Travel Limited v Stoute [2015] UKEAT 0302/14/2601, the EAT ruled that Type 2 diabetes controlled by medication to reduce blood sugar levels and the avoidance of sugary drinks was not a disability. The EAT said that abstaining from sugary drinks was not a substantial adverse effect on day-to-day activities within the meaning of the Equality Act 2010.