The Act states that a person has a disability if they have a physical or mental impairment and, this has a substantial and long term effect, on their ability to carry out normal day-to-day activities.
Only a court or a tribunal can declare whether a person has a disability under the terms of the Act. Your employer may ask an occupational health service to say whether you are covered by the Act, but all they can do is give an opinion. You could also speak to the medical/ health care professionals involved in your care, to ask their advice on whether you have the protected characteristic of disability.
Some progressive conditions (for example, cancer, HIV, lupus and MS) are automatically considered as disability, so if you have one of these conditions, irrespective of how minor your symptoms may be, you are covered by the Act immediately after diagnosis. Also covered are people registered as blind and some with other visual impairments.
Recurring or fluctuating conditions such as arthritis, epilepsy and certain mental health conditions may be covered even if the effects cease periodically due to a period of remission. However, the requirement for a long-term effect (see below) is still necessary. Remember that assessment considers a person as if they are not taking any medication or receiving treatment to ease or improve their condition.
Physical or Mental Impairment
If you have a diagnosis, it should be confirmed by written medical evidence, preferably from a medical expert. This should be a consultant grade surgeon or physician; or suitable practitioner such as your GP, occupational health doctor or counsellor. In the absence of a diagnosis, you will need a full and accurate description of your condition(s) and symptoms confirmed by written medical evidence.
Substantial and long-term adverse effect
Even if you recover from your impairment, you may still bring a claim against your employer if you are treated less favourably for having had that impairment.
- medical evidence must provide assessment of the seriousness of your impairment and its effects
- this must be more than a minor or trivial effect
- the assessment ignores any medical treatment you receive and looks at the effect of your condition without treatment
- ‘long-term’ makes the distinction between an ordinary or short-term illness and a disability; long-term means that the impairment has:
- lasted for at least 12 months, or
- is likely to last for at least 12 months, or
- is likely to recur or to last for the rest of a person’s life.
Normal day to day activities
The Act looks at a person’s impairment and whether it substantially affects their ability to carry out normal day-to-day activities. It does not provide an exhaustive list of day-to-day activities; these are considered to be things people do on a regular or daily basis including:
- reading and writing
- having a conversation or using the telephone
- watching television
- getting washed and dressed
- preparing and eating food
- carrying out household tasks
- walking and travelling by different modes of transport, and taking part in social activities
- control of your bowels or bladder
- understanding physical danger.
An impairment might not have a substantial adverse effect on a person’s ability to undertake a particular day-to-day activity in isolation, but its effects on more than one activity, taken together, could result in an overall substantial adverse effect.
The cumulative effect of related impairments should be considered when determining whether the person has experienced a long-term effect for the purposes of meeting the definition of a disabled person. The substantial adverse effect of an impairment which has developed from, or is likely to develop from, another impairment should be taken into account when determining whether the effect has lasted, or is likely to last at least twelve months, or for the rest of the life of the person affected.
For information on long COVID-19 please see our COVID-19 and time off guide.
You can also access a range of resources and support relating to ill health and disability through our Peer Support Service.