Lowering the bar

Employees are more likely to be considered to have a disability following an Employment Appeal Tribunal decision on the impact of the Equality Act, writes Louise Singh.

When an employee claims they have a disability there is a natural temptation to be dismissive if you know there are lots of things they can do. A new decision of the Employment Appeal Tribunal has looked at what impact the Equality Act 2010 has on the test for disability. The EAT has re-asserted that the test looks at what someone can not do as a result of their condition (not what they can). The terms of the judgment make it more likely in the future that employees may have a disability.

The detail

This case was brought by a station attendant who was dismissed on capability grounds. His back condition meant that he could not stand for the very long periods required in his job, which was to check tickets at the station gate. As claimants often do, he focussed in his evidence on his inability to do his role when the test for a disability is the impact a condition has upon the individual’s ability to do normal day to day activities.

In its judgment in Aderemi v London and South Eastern Railway the Employment Tribunal observed that the claimant could walk around, carry a tray and do exercise, and so concluded that he did not have a disability. The Employment Appeal Tribunal have overturned that decision highlighting that the key for the disability test is what it is the individual can not do, not what they can.

The EAT is keen to emphasise that it is important not to be too specific when looking at activities and a high level approach should be taken. The type of things which should be considered are sitting, standing or walking. Being able to stand at a ticket gate for an 11-hour shift may not be a day to day activity, but being on one’s feet for a lengthy period of time is.

The EAT also emphasises that the only requirement is that the adverse impact on the individual must be such that it is not classified as trivial or insubstantial, which means that in most cases where an individual’s condition does have an adverse impact upon his ability to do a day to day activity it will necessarily satisfy this test (albeit it will also need to be long-term). This judgment is important as it confirms the test for disability post the changes introduced by the Equality Act 2010 (which abolished the list of normal day-to-day activities). It confirms that the test is not very tough.

What does this mean for me?

It is sometimes very easy to get drawn into a debate about what an employee can do, when considering if they have a disability. Do not do so. It is irrelevant that your employee plays golf or five a side football, dances, or even sky-dives. What is important is what he can not do because of his condition and for how long. With back conditions, if the employee cannot sit or stand for reasonable periods that will be enough, irrespective of what else they can do.

This is of course important because if the employee has a disability you will be under a positive duty to make reasonable adjustments and will need to show that any capability dismissal is a proportionate means of achieving a legitimate aim. If Mr Aderemi’s condition is found to be a disability by the Tribunal required to reconsider the case, the onus on the employer to have looked at alternative ways of Mr Aderemi collecting tickets or indeed remaining employed in other roles will be significantly higher. If in doubt about the extent of an individual’s condition (as may often be the case with stress- related illness for example), it is always safer to assume that the condition may be a disability.

Comment

This judgment represents a re-statement of previous decisions in the context of the new law. In doing so, it reminds us all that the test for disability is relatively easily satisfied and many employees will have legally defined disabilities even when they themselves may not consider that they do. Tread with care when making decisions about employees who may have a disability, and certainly do not dismiss the disability risk because of the things you know they can do.

Louise Singh is a Professional Support Lawyer at Weightmans. She can be contacted on 0151 242 6520 or by This email address is being protected from spambots. You need JavaScript enabled to view it..