Employment Solicitor, Georgina Thomas provides us with a legal update in the case of Elliot V Dorset County Council - which has established a low threshold for employees asserting they have a disability under the Equality Act 2010.
Employers know that when an employee suffers from a disability, they have a considerable number of additional protections. Something that can be difficult is knowing when an employee benefits from this additional protection. The Employment Appeal Tribunal has given a judgment which gives good helpful guidance to employers to use when considering whether an employee suffers from a disability.
One of the key factors to consider when deciding if an employee is in fact covered by the definition in the Act is whether or not the impairment which they suffer from has a “substantial effect on their ability to carry out day-to-day activities”. This case concerned the meaning of “substantial” and how it should be interpreted.
Mr Elliott was diagnosed with Autism Spectrum Disorder – which wasn’t in dispute. However, the employer argued that, despite admitting Autism could be a disability, Mr Elliott did not come within the definition. The employer said that Mr Elliott's Autism Spectrum Disorder did not have a “substantial adverse impact on his ability to carry out day-to-day activities”.
The Tribunal agreed, and held it did not, and so he was not covered, taking into account that Mr Elliott used coping strategies to deal with his admitted difficulties, and thus concluded that the impact on him was not substantial. Mr Elliott appealed and the EAT allowed the appeal, giving some guidance on how to consider the meaning of disability in its legal sense.
Importantly, the EAT stated that when considering the meaning of “substantial” in this context, a Tribunal should look at it as whether the impact is “more than minor or trivial”. If the facts provide an answer on the basis simply of assessing it as more than minor or trivial, there is no need to go further. However, if the impact isn't obviously more than substantial or trivial the EAT gave guidance as to the sorts of questions Tribunals should ask themselves.
Firstly, a Tribunal should focus on what the person cannot do, not what they can do. The mere fact of being able to carry out day to day activities doesn’t mean an employee's ability to do so isn’t impaired, and there should be no balancing out of what they can and cannot do to obtain an overall picture. In this case, for example, Mr Elliott alleged he had difficulty with communication and the question was whether this was “more than minor or trivial”. It was not an answer to look at other areas where he may excel, and “balance” that out with his communication issues.
Also, when considering the effect of an impairment a Tribunal should compare the employee to themselves if they didn't have the impairment; a comparison with others should not be made. “What could that person do without that impairment?” is the question – not how well do they cope in comparison with other people. Also coping and avoidance strategies do not undermine the existence of a substantial adverse effect unless those strategies will always succeed and won’t break down – for example under stress.
The case gives a very clear indication that it will be hard for employers to argue that there is no substantial adverse effect and so the employee isn't disabled – the threshold for establishing disability is very low. If there is any doubt it will normally be safer for employers to assume the employee is disabled and proceed accordingly.
For further information about this article please get in touch with Georgina Thomas via email to georgina@bridgeehr.co.uk or your usual contact or call 01904 360 295
