Statutory guidance on the meaning of disability 




The EHRC has issued statutory guidance: Guidance on matters to be taken into account in determining questions relating to the definition of disability, available on the EHRC website. This is an important resource for reps where a member’s disability is challenged by the employer. 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, but someone can still be disabled even if their condition is caused by an excluded condition. For example, liver disease or depression can be a disability even if they result from alcohol dependency (Hutchinson 3G v Mason [2003] UKEAT/0369/03). The Appendix to the Guidance also contains some illustrations of typical normal day-to-day activities. 




A person can be disabled without a firm diagnosis of the cause of the condition. For example, someone with chronic back pain can be disabled although doctors cannot pinpoint its cause. In Aderemi v London and South Eastern Railway Limited [2012] UKEAT 0316/12/0612, a station assistant was dismissed 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, exacerbated 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. The same approach was taken by the ECJ in Kaltoft v Kommunernes Landsforening [2014] EUECJ C-354/13, the case of a clinically obese childminder who argued that his weight contributed to his selection for redundancy. Obesity will not always be a disability, ruled the ECJ, but it can be a disability if it results in physical, mental or physiological impairments that together with other barriers, hinder a person’s ability to participate effectively in professional life.




Someone can be disabled if they have a life-long condition that renders them susceptible to infection, if 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).




Tribunals do not regard stress on its own as a disability (Herry v Dudley Metropolitan Borough Council [2016] UKEAT 0101/16/1612). In addition, the “low mood” that results from “adverse life events” such as poor treatment at work, redundancy or divorce is unlikely to be regarded in most cases as a disability (J v DLA Piper UK [2010] ICR 1052). In practice, the statutory requirement for a condition to be likely to last at least 12 months is likely to exclude from protection most cases of short-term reactive depression brought on by adverse life events. 


A claim for direct disability discrimination cannot succeed if the person who treats a claimant less favourably genuinely does not know or perceive that he or she has a disability, including a progressive disability, at the time of the negative treatment (Gallop v Newport City Council [2016] UKEAT/1008/15/DM). The confidential knowledge of an occupational health professional cannot be “imputed” to the decision-maker.