Statutory guidance on the meaning of disability 



The Government Equalities Office has published statutory guidance: Guidance on matters to be taken into account in determining questions relating to the definition of disability, available on the Gov.uk website. This is an important resource for reps where there is any doubt as to whether a 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 a member’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 although there is no firm diagnosis of the cause of the condition. For example, someone with chronic back pain can be disabled although 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 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 the 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 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).



Stress, without anything else, is not a disability. Tribunals draw a distinction between stress and mental illness. In addition, low mood resulting from “adverse life events” such as negative treatment at work, redundancy or divorce, while capable of being extremely upsetting, is unlikely, in most cases, to be regarded by an employment tribunal as a disability (J v DLA Piper UK [2010] ICR 1052, Herry v Dudley Metropolitan Borough Council [2016] UKEAT 0101/16/1612). The requirement for a condition to be likely to last at least twelve months (see above) will disqualify many cases of reactive depression caused by adverse life events from protection.