Disability 


“Disability” has a strict definition under the EA 10. To succeed in a tribunal claim, each limb of the definition must be satisfied. 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” (section 6 and schedule 1, EA 10). A condition is “long-term” if it has lasted for 12 months, is likely to last at least 12 months, or for the rest of the person’s life.
The test looks at whether, at the time of the negative treatment, the impairment was likely to last at least 12 months, not at whether the impairment has in fact lasted 12 months by the date of any tribunal hearing (Martin v University of Exeter [2018] UKEAT/0092/18/LA). 


“Likely” means “could well happen” (SCA Packaging Limited v Boyle [2009] ICR 1056). Tribunals are expected to take a broad view of the symptoms and their effect, looking at the claimant’s own evidence as well as that of medical experts. 



“Substantial” means “more than minor or trivial” (section 212(1), EA 10). This is a relatively low bar which is crossed whenever a limitation “goes beyond the normal differences in ability which may exist among people”, looking at the whole picture (Statutory Guidance, Para B1). If something is not “trivial”, it will be “substantial” (Aderemi v London and South Eastern Railway Limited [2012] UKEAT/0316/12/KN). The time taken to perform an activity must be taken into account when deciding whether an effect is “substantial”. 




For as long as the UK remains a member of the EU, tribunals must take into account the EU social model of disability when interpreting the definition of disability. This model emphasises the social purpose of laws supporting the rights of disabled workers, namely the removal of barriers to full participation at work caused by the environment and by stereotypical attitudes to disability (Ring v Dansk almennyttigt Boligselskab C-335/11 and C-337/11). Tribunals must also take account of the UN Convention on the rights of people with disabilities, ratified by the UK in 2009.



There is no statutory list of normal day-to-day activities. Instead, a claimant must satisfy the tribunal that their own normal day-to-day activities are adversely affected by their condition. It is what they cannot do as a result of their impairment that must be assessed, not what they can do (Aderemi v London and South Eastern Railway Limited [2012] UKEAT/0316/12/KN). If they find one normal day-to-day activity difficult, it doesn’t matter that they can perform other such activities without difficulty. In addition, the fact that someone can mitigate the effects of their impairment does not prevent there being a disability. 





Both work and non-work activities can be normal day-to-day activities. A work activity is “normal” if it is found in a range of different work situations, for example, standing for long periods, reading or talking on the telephone. Under EU law, it includes all activities relevant to enabling a person to participate in working life. The EU social model requires a broad approach to the meaning of “normal day-to-day activities”. For example, in Banaszczyk v Booker Limited [2015] UKEAT/0132/15/RN, regularly lifting and moving heavy goods weighing up to 25kg at work was judged to be a normal day-to-day activity because it is “normal” for many people in their working lives. Working a night shift can be a normal day-to-day activity (Chief Constable of Dunstable and Galloway Constabulary v Adams [2009] ICR 1034). The test looks at whether an activity is normal for most people, not for the person concerned. For example, playing the piano to concert standard would not be a normal day-to-day activity, even though it is normal for a concert pianist. 





The phrase covers activities relevant to participation in professional life, such as carrying out an assessment or exam to achieve a promotion (Paterson v Commissioner of Police and the Metropolis [2007] ICR 1522).