The legal test
A disability exists for the purposes of the DDA if a person has a physical or mental impairment that has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. There was no provision in the DDA itself to define with any certainty whether any particular conditions amounted to a physical or mental impairment for the purposes of the Act. Under Section 3, the secretary of state issued a “guidance of matters to be taken into account in determining questions relating to the definition of disability”. Even this gave only the most obvious examples, such as blindness or deafness.
Guidance from case law
As a result of the increasing number of DDA claims now being brought in the tribunal, it is now fairly clear that a number of conditions are almost certainly going to be physical or mental impairments within the above definition. These include ME, multiple sclerosis, diabetes, serious back injuries, deafness, cerebral palsy, asthma, epilepsy, congenital myotonic dystrophy and club foot.
In one case, O’Neill, the tribunal expressed the view that any condition classified as a separate and recognisable disease by the World Health Organisation would probably qualify, provided the condition had the necessary long-term adverse effect as set out under the Act. In the Hopkins case, rheumatoid arthritis was held not to be a disability because its effect was, in that case, not sufficiently “substantial”.
In another, Rowley, a back injury was held not to be a disability. In each case, the employer should look very carefully at the definition in the Act and make an informed decision. It is never advisable simply to follow the view of a doctor as to whether or not a person is disabled under the Act as the test is a legal, not a medical, one. Perhaps the area where employers have most difficulties is whether or not a “mental impairment” constitutes a disability. To qualify, the impairment should be clinically well recognised. The World Health Organisation’s list includes depression, anxiety, schizophrenia and others. In many cases being decided now by tribunal, expert evidence is presented by both sides. Recent cases have determined that post-traumatic stress disorder and severe depression are sufficiently long-term to qualify. A depressive or manic episode which is very short lived, however, is unlikely to qualify.