Employers exposed to wider ‘disability’ net

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 the effect of their disability does not mean they are not
disabled within the Act.

Implications

The cases of Goodwin and Vicary suggest a concern by the EAT that tribunals
were interpreting the definition of disability too restrictively and relied too
much on medical evidence. In Vicary the EAT held that the tribunal’s decision
was flawed because it had, in effect, delegated its decision-making to the
doctor.

For employers, it is useful to have the clarification because tribunal
approaches to the issue have differed. It is likely that these cases will mean
more applicants will be able to satisfy the test of disability so that,
increasingly, the focus will be on the treatment of the applicant by the
employer and, where there has been less favourable treatment, if that treatment
can be justified.

Employers should therefore be prepared to give clear evidence as to reasons
for the treatment of a disabled employee and attempts to make reasonable
adjustments where appropriate.

Sarah Lamont is a partner in the employment department of Bevan Ashford
solicitors

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