Case throws up anomaly in some progressive conditions which will not be
covered by Government’s redefinition of disability
A person has a disability within the definition of the Disability
Discrimination Act 1995 if he has a physical or mental impairment which has a
substantial and long-term adverse effect on his ability to carry out normal
The situation is slightly different however for progressive conditions such
as cancer, Multiple Sclerosis or HIV infection.
Under the Act, an employee with a progressive condition is deemed to be a
disabled person if the condition has some effect (not necessarily substantial)
on his ability to carry out normal day-to-day activities and the condition is
likely to result in a substantial adverse effect at some time in the future. In
other words, a person who has a condition such as MS, but who is in remission,
may not be able to satisfy the usual definition of disability but can still be
covered by the Act if the medical evidence shows a substantial adverse effect
is likely to occur at some future date.
In London Underground v Bragg, 1999, unreported, the employee lost his job
as a train driver after his hearing deteriorated. The EAT noted that the only
effect the impairment had on his day-to-day activities was that he had to turn
up the volume on the television and occasionally had difficulty hearing people
around him speak.
The EAT took account of evidence that Mr Bragg’s hearing was tending to
deteriorate and that his condition was slowly progressive. On that basis, it
upheld a finding that he fell within the definition of disability.
The opposite decision was reached in Mowat-Brown v University of Surrey,
2002, IRLR 235. Dr Mowat-Brown was employed as a lecturer from 1981 to 1998. In
1995, when diagnosed with MS, he was engaged under a contract categorised as 55
per cent of a full-time contract. Following internal restructuring, he was
offered a contract for only 20 per cent of a full-time contract. He declined
and brought a claim for disability discrimination and unfair dismissal.
The employment tribunal held that Dr Mowat-Brown was not a disabled person
within the meaning of the Act on the basis that the medical evidence was that
his condition was "quiescent".
On appeal, Dr Mowat-Brown argued that all that he needed to show was that
"the condition" (that is MS in his case) was likely to result in the
substantial adverse effect. He argued that a requirement for each applicant to
produce a diagnosis that future substantial adverse effect was more likely than
not would remove many MS sufferers from the potential protection of the provision.
The employers, on the other hand, argued that the words referred to the
applicant’s condition, otherwise there would be no need for any further inquiry
once it was established a person had MS.
The EAT found for the employers. It held that the question to be asked is
whether, on the balance of probabilities, the claimant has established that the
condition is likely to have a substantial adverse effect. It is not enough
simply to establish that he has a progressive condition and that it has had an
effect on his ability to carry out normal day-to-day activities. The claimant
must go on to show that it is more likely than not that at some future date he
will have an impairment which will have a substantial adverse effect.
Condition may worsen
This case highlights a serious anomaly. Employees who have been diagnosed
with a progressive disease are currently unprotected by the Act if they are
unable to establish that their day-to-day activities are affected at all or
that their condition is likely to worsen in future.
The Government has recently announced that it proposes to alter the
definition of disability to include most forms of cancer and HIV from the point
of diagnosis. There seems little logic, however, in not extending this to other
types of progressive disease which have a relapsing and/or remitting effect
such as MS.
By Linda Farrell, a partner at Bristows