Disability is defined by Section 6(1) of the Equality Act as follows:
‘A person has a disability for the purposes of this Act if he (sic) has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.’
Ultimately, as this is a legal definition, only a court or a tribunal can declare whether a person has a disability under the terms of the Act or not. Your employer may ask an Occupational Health service to say whether you are covered by the Act, but in reality all they can do is give an opinion. You may also wish to speak to the medical/ healthcare professionals involved in your treatment or care in order to ask their advice on whether you have the protected characteristic of disability.
Physical or Mental Impairment
- If you have a diagnosis, it should be confirmed by written medical evidence, preferably from a medical expert i.e. 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
- 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.
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.
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.
If you have an impairment that affects you in ways not listed above you may still be covered by the Act, but you would need to demonstrate what activities are affected and how these are affected by your impairment.
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.
A person may, have more than one impairment, any one of which alone would not have a substantial effect. In such a case, account should be taken of whether the impairments together have a substantial effect overall on the person’s ability to carry out normal day-to-day activities.
For example, a minor impairment which affects physical co-ordination and an irreversible but minor injury to a leg which affects mobility, when taken together, might have a substantial effect on the person’s ability to carry out certain normal day-to-day activities.
The cumulative effect of related impairments should be taken into account 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.
*Likely in this context, should be interpreted as meaning that it could well happen, rather than it is more probable than not that it will happen.
Some progressive conditions (e.g. 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.
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 above) 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.