The EAT's clarification of "disability" definition under discrimination Act puts employers in tribunal spotlight
The Employment Appeal Tribunal has given further guidance on the definition of disability under the Disability Discrimination Act 1995, following the Goodwin v The Patent Office case, which had said tribunals should adopt a more purposive approach to the meaning of disability.
In Vicary v British Telecommunications, the EAT stressed that it is for the tribunals themselves, looking at all the evidence to decide whether or not an applicant is disabled under the Act.
Under section 1(1) of the Act, a person has a disability if they have "a physical or mental impairment which has a substantial and long-term adverse affect on their ability to carry out normal day-to-day activities".
While medical evidence is obviously relevant to part of the definition - the question of whether there is a physical or mental impairment - the EAT emphasised that it is not for a doctor to define a "normal day-to-day activity, or to decide if the impairment was or was not "substantial".
Facts of the case
Vicary claimed disability discrimination by her employer. She was employed as a clerical officer and had a condition which meant she lost strength in her arms.
BT denied she was disabled within the Act. Despite finding that she was unable to do heavy shopping, carry briefcases or undertake cooking activities, the tribunal held that her impairment did not have a "substantial adverse effect" because she could use both hands to an extent.
The tribunal focused on the functions she could perform and suggested she could reasonably be expected to modify her behaviour to overcome, for example, her inability to open jars by using an electric tin opener which would mean there was no substantial effect on those activities.
It also took into account the employer's doctor's opinion that there was an impairment but the impairment was not "substantial" under the meaning of the Act. Vicary appealed.
The EAT held that she was disabled. It said tribunals should concentrate on the tasks an applicant cannot perform and that, in this case, the tribunal should not have considered whether Vicary could reasonably be expected to modify her behaviour to lessen the impact of her impairment. The fact that a person can mitigate