When is a progressive condition a disability?

A recent EAT case has clarified the meaning of progessive conditions under
the Disability Discrimination Act 1995

In an employment context, it is unlawful to discriminate against an employee
or potential employee for a reason relating to that person’s disability.
Employers should be familiar with the meaning of disability as defined by
Section 1 of the Disability Discrimination Act 1995 (DDA): "…a physical or
mental impairment which has a substantial and long term adverse effect on [an
employee’s] ability to carry out normal day-to-day activities".

But what if an employee has a condition which has not yet had a substantial
adverse effect but which is expected to do so in the future (a ‘progressive
condition’)? What protection does such an employee have under the DDA? Schedule
1, paragraph 8 (1) of the DDA covers people with progressive conditions that do
not substantially and adversely affect their current ability to carry out
normal day-to-day activities but which are likely to do so over time.

Can an employee claim he/she is disabled as soon as that employee
experiences some effect of a progressive condition, or must that employee also
prove the effect is likely to become substantial in the future? This issue was
considered in the recent case of Mowat-Brown v University of Surrey EAT, 2002,
IRLR 235.

The case involved a university lecturer who was diagnosed as having multiple
sclerosis. At that time he had a contract equivalent to 55 per cent of a
full-time contract. However, following the amalgamation of his department with
another, the university relieved him of administrative and research duties and
offered him a contract equivalent to 20 per cent of a full-time contract. He
rejected the new contract and his employment terminated. He subsequently
brought claims of disability discrimination and unfair dismissal in the
employment tribunal.

According to the EAT, the key question was whether, on the balance of
probabilities, the employee had established his condition was likely to have a
substantial adverse effect. "It is not enough simply to establish that he
has a progressive condition and that it has or has had an effect on his ability
to carry out normal day-to-day activities," the EAT ruled. "He must
go on and show that it is more likely than not that at some stage in the future
he will have an impairment which will have a substantial adverse effect on his
ability to carry out normal day-to-day activities."

In every DDA case, the employment tribunal will form its own view as to
whether an applicant is disabled or not. The main reason why Mowat-Brown failed
was because the medical evidence did not support him. His medical prognosis was
quite good: the adverse effect of his condition was not likely to become
substantial. The EAT saw no reason to interfere with the tribunal’s decision
that Mowat-Brown was not disabled.

Key points

– The above case highlights the importance of medical evidence in DDA cases.
Statistics may also be useful in persuading a tribunal that a progressive
condition is likely to result in substantial adverse effects

– The tribunal must make its own assessment of the medical evidence and must
not delegate to doctors its responsibility for determining whether an employee
is disabled

– "Physical impairments" have been held to include: back injury
(soft tissue injury); cancer; cerebral palsy; club-foot; cluster headaches;
diabetes; dyslexia; epilepsy; HIV; ME/chronic fatigue syndrome; MS; muscular
dystrophy and visual impairment

– The Government plans to amend the definition of disability to include
cancer and HIV from the point of diagnosis

– The Employers’ Forum on Disability is a charity which provides a wealth of
useful information and guidance on this subject: www.employers-forum.co.uk

James Moss is a solicitor at Palser Grossman solicitors

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