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. 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 or to steal are excluded from the definition of disability. A “tendency to steal” requires a pattern of behaviour rather than a one-off moment of madness, and evidence of dishonesty rather than amnesia or forgetfulness (Wood v Durham County Council [2018] UKEAT/0099/18/00).


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). 


No firm diagnosis or cause is required for an impairment to be a disability. In Aderemi v London and South Eastern Railway Limited [2012] UKEAT 0316/12/0612, a station assistant was dismissed after chronic lower back pain eventually left him unable to stand for more than 20 minutes at a time or to do any bending or lifting. His back pain was a disability even though doctors could not pinpoint its cause. 





In Walker v Sita Information Networking Computing Limited [2013] UKEAT/0097/12, the EAT considered obesity. The EAT ruled that while obesity is not itself a disability, it can make disability more likely. In Kaltoft v Kommunernes Landsforening [2014] EUECJ C-354/13, a clinically obese childminder argued that he suffered disability discrimination because his weight contributed to his selection for redundancy. Obesity will not always be a disability, ruled the ECJ, but it can be if it results in physical, mental or physiological impairments that hinder effective participation in working life.





Someone can be disabled if they have a life-long condition that leaves them susceptible to repeat infections that 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 as a disability (Herry v Dudley Metropolitan Borough Council [2016] UKEAT 0101/16/1612). The courts have also said that “low mood” 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 requirement for a condition to be likely to last at least 12 months is likely to exclude many cases of short-term reactive depression that are linked to adverse life events. 



https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/570382/Equality_Act_2010-disability_definition.pdf