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Is a lifelong medical condition a disability under the Equality Act 2010?

SUMMARY:  Is a lifelong medical condition a disability under the Equality Act 2010?

Discrimination can arise in various guises and perhaps the one area that employers find the most challenging is disability discrimination.  The Equality Act 2010 says that it is unlawful for employers to discriminate against disabled workers. Discrimination could arise as follows:

 - in the terms of employment offered;

 - in the opportunities for promotion, transfer, training or receiving any other benefit;

 - by refusing to offer, or deliberately not offering, any such opportunity; or

 - by dismissing the worker, or subjecting them to any other negative treatment.

In addition, there is a legal responsibility to make reasonable adjustments which requires employers to take steps to prevent a disabled person suffering a substantial disadvantage compared with people who are not disabled. The duty applies to any disadvantage caused by a provision, criterion or practice relied upon by the employer, or any physical feature of premises occupied by the employer.

The main concern for most employers is being aware of when an employee is actually disabled so that they can understand their legal responsibilities and ensure that a disabled worker is treated fairly and protected from discrimination.  There is no legal obligation on a worker to tell an employer about their disability. In most types of disability discrimination it is not a defence for an employer to say “I didn’t know”.

The starting point is to consider whether the worker has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

The following impairments are likely to be a disability: cancer, diabetes, multiple sclerosis and heart conditions; hearing or sight impairments, or a significant mobility difficulty; and mental health conditions or learning difficulties.

In some cases it will be obvious that the worker is protected. In other cases, it will be difficult for the employer who is not medically qualified to be sure. If in any doubt an employer is well advised to take medical advice preferably from the worker’s GP or consultant; and until advised to the contrary it is safer to assume the individual is disabled.  If there is still disagreement and for some reason a worker does challenge the way they have been treated in the employment tribunal then only the tribunal can say if a particular individual’s impairment falls within the definition of  disability under the legislation.  Medical evidence is normally considered as well as evidence from the worker.

An example of how complex the issue of assessing whether a worker is disabled for the purposes of protection under the Equality Act has been highlighted by the recent case of Sussex Partnership NHS Foundation Trust v Norris.

In this case, Miss Norris claimed she was discriminated against when in 2010 a conditional job offer, subject to satisfactory references was withdrawn when one of her references referred to her disability. Miss Norris claimed disability discrimination connecting the withdrawal of the offer with the comment made in the reference.  Employers should note that protection under the Equality Act goes wider than protecting an individual in active employment and applies also to prospective workers.

Whilst it was accepted by the NHS Trust that Miss Norris had impairment, it did not agree that she was disabled within the meaning of the Equality Act.  Miss Norris suffered from a life-long medical condition called Selective IgA Deficiency which is a defect of the immune system.  It makes a sufferer more prone to infection and potentially long periods of recovery but the effects of the condition can be controlled by medication.  Miss Norris had been very ill in 2007 for a number of months but there was little evidence available that since then she had suffered from any problems that had had a substantial effect on her ability to carry out day-to-day activities.

The Employment Appeal Tribunal had to therefore decide whether Miss Norris’ life-long condition which had in the past had a substantial adverse effect on her ability to carry out normal day-to-day activities was sufficient to establish that she had a disability for the purposes of protection under the Equality Act.  The EAT decided it was not sufficient.  It did however accept that the substantial adverse effect could be caused by increased infections.  However, there would need to be adequate evidence that the infections would have a substantial adverse effect.  It was also not enough to argue that life-long infections were likely to recur; even if infections were likely to recur there again would need to be evidence to show that the infections would be serious enough to have a substantial adverse effect.

This case only goes to highlight how complex the issue can be.  When employers are dealing therefore with long term absence, poor performance or conduct where a medical condition may be thrown in to the mix it would be prudent to take both legal and medical advice.  These steps at the outset could avoid costly claims in the future.

Helen Taylor, Senior Associate

Contact Information

fgmedia@floydgraham.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice. 

Updated: by FG Solicitors
Call us on:  0808 172 93 22

IS A LIFELONG MEDICAL CONDITION A DISABILITY UNDER THE EQUALITY ACT 2010?

SUMMARY:  Is a lifelong medical condition a disability under the Equality Act 2010?

Discrimination can arise in various guises and perhaps the one area that employers find the most challenging is disability discrimination.  The Equality Act 2010 says that it is unlawful for employers to discriminate against disabled workers. Discrimination could arise as follows:

 - in the terms of employment offered;

 - in the opportunities for promotion, transfer, training or receiving any other benefit;

 - by refusing to offer, or deliberately not offering, any such opportunity; or

 - by dismissing the worker, or subjecting them to any other negative treatment.

In addition, there is a legal responsibility to make reasonable adjustments which requires employers to take steps to prevent a disabled person suffering a substantial disadvantage compared with people who are not disabled. The duty applies to any disadvantage caused by a provision, criterion or practice relied upon by the employer, or any physical feature of premises occupied by the employer.

The main concern for most employers is being aware of when an employee is actually disabled so that they can understand their legal responsibilities and ensure that a disabled worker is treated fairly and protected from discrimination.  There is no legal obligation on a worker to tell an employer about their disability. In most types of disability discrimination it is not a defence for an employer to say “I didn’t know”.

The starting point is to consider whether the worker has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

The following impairments are likely to be a disability: cancer, diabetes, multiple sclerosis and heart conditions; hearing or sight impairments, or a significant mobility difficulty; and mental health conditions or learning difficulties.

In some cases it will be obvious that the worker is protected. In other cases, it will be difficult for the employer who is not medically qualified to be sure. If in any doubt an employer is well advised to take medical advice preferably from the worker’s GP or consultant; and until advised to the contrary it is safer to assume the individual is disabled.  If there is still disagreement and for some reason a worker does challenge the way they have been treated in the employment tribunal then only the tribunal can say if a particular individual’s impairment falls within the definition of  disability under the legislation.  Medical evidence is normally considered as well as evidence from the worker.

An example of how complex the issue of assessing whether a worker is disabled for the purposes of protection under the Equality Act has been highlighted by the recent case of Sussex Partnership NHS Foundation Trust v Norris.

In this case, Miss Norris claimed she was discriminated against when in 2010 a conditional job offer, subject to satisfactory references was withdrawn when one of her references referred to her disability. Miss Norris claimed disability discrimination connecting the withdrawal of the offer with the comment made in the reference.  Employers should note that protection under the Equality Act goes wider than protecting an individual in active employment and applies also to prospective workers.

Whilst it was accepted by the NHS Trust that Miss Norris had impairment, it did not agree that she was disabled within the meaning of the Equality Act.  Miss Norris suffered from a life-long medical condition called Selective IgA Deficiency which is a defect of the immune system.  It makes a sufferer more prone to infection and potentially long periods of recovery but the effects of the condition can be controlled by medication.  Miss Norris had been very ill in 2007 for a number of months but there was little evidence available that since then she had suffered from any problems that had had a substantial effect on her ability to carry out day-to-day activities.

The Employment Appeal Tribunal had to therefore decide whether Miss Norris’ life-long condition which had in the past had a substantial adverse effect on her ability to carry out normal day-to-day activities was sufficient to establish that she had a disability for the purposes of protection under the Equality Act.  The EAT decided it was not sufficient.  It did however accept that the substantial adverse effect could be caused by increased infections.  However, there would need to be adequate evidence that the infections would have a substantial adverse effect.  It was also not enough to argue that life-long infections were likely to recur; even if infections were likely to recur there again would need to be evidence to show that the infections would be serious enough to have a substantial adverse effect.

This case only goes to highlight how complex the issue can be.  When employers are dealing therefore with long term absence, poor performance or conduct where a medical condition may be thrown in to the mix it would be prudent to take both legal and medical advice.  These steps at the outset could avoid costly claims in the future.

Helen Taylor, Senior Associate

Contact Information

fgmedia@floydgraham.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.