Definition of Disability

The Employment Appeals Tribunal (EAT) has recently given a ruling which re-emphasises the proper assessment of disability for the purposes of the Equality Act.In its ruling the EAT examined the question of when assessing whether an employee is disabled should an Employment Tribunal concentrate on those activities which the employee cannot do rather than those which he can do.

The case, Aderami v London &South East Railways involved a railway station assistant who worked in the station gate line as a first point of contact for customers and checked tickets. Although his role was not static, he was effectively required to be standing for substantial periods, for shifts of 9 hours duration.

Mr Aderami developed a back problem, which eventually prevented him from being able to stand for lengthy periods. Mr Aderami was subsequently dismissed by his employer under their capability procedure. Mr Aderami subsequently brought claims of unfair dismissal and disability discrimination against his former employer.

The Employment Tribunal rejected both the claims brought by Mr Aderami. In dealing with the disability discrimination claim the Employment Tribunal considered that the back problem did not have a substantial adverse effect on his ability to carry out normal day to day activities. In reaching this decision the Employment Tribunal set out a list of things that Mr Aderami could still do.

On appeal the EAT concluded that the Employment Tribunal had approached the assessment of disability in the wrong way. The EAT ruled that the Employment Tribunal should have considered wht the employee could NOT do, rather than what he could do when considering if he was disabled or not. Mr Aderami could not bend or lift, or stand for over 30 minutes. These facts indicated that he did in fact have a condition which imposed a substantial detrimental effect on his ability to carry out normal day to day activities.

Under the Equality Act a person has a disability if he/she has a physical or mental impairment which has a substantial and long term adverse effect on his/her ability to carry out normal day to day activities. The law goes on the state that substantial covers any situation which is more than minor or trivial- which is a relatively modest threshold. As the condition limited the time Mr Aderami could stand, and his ability to lift, both of which are normal day to day activities, it was clear that the Employment Tribunal was wrong to focus on matters that he actually could do including many that were matters outside his work.

The case does not say anything new, but does serve as a reminder to employers on how to determine if an employee is dsabled or not, because extra statutory duties will apply in relation to any disabled employee, including the duty to make reasonable adjustments (to policies and procedures as well as physical adjustments to the workplace and work practices). The case also reminds us that the threshold for disability is not particulary onerous- pointing out that the effect in question need only be more than minor or trivial.

At Hallett Employment Law Services we can help employers prepare and implement appropriate policies and procedures to reduce their risk of facing any claim of disability discrimination, and help individual employees in securing their rights under the disability discrimination legislation. If you need any help do not hesitate to contact us.