Public and Commercial Services Union

It is important to understand the definition of disability within the DDA, as only people who fall within the definition (or have, in the past, fulfilled these criteria) are covered by the majority of the Disability Discrimination Act's safeguards.

The only exception is for the section against victimisation. The definition of disability was updated and amended with effect from December, 2005.

The act defines disability as:

'A physical or mental impairment which has a substantial and long-term adverse effect on a person's ability to carry out day-to-day activities.'

Case law (Goodwin -v- Patent Office) recommends that Tribunals should approach questions of whether someone falls within the definition and is therefore protected by the Act by referral to a 4 part test.

Part 1. Has the individual got an impairment, physical or mental

Impairment is not specifically defined in the Act - but case law suggests that a formal medical diagnosis is not always necessary, provided that it is clear that functions are impaired.

However, if no cause of symptoms, either organic or mental can be found, this can cause problems in securing tribunal endorsement that a person has 'an impairment'.

You should be careful in writing any ET1, so as not to define that an impairment is solely physical if there could be mental impairment or mental illness involved (this is commonly known as 'functional overlay', where a mental condition causes only or mainly physical symptoms).

Mental impairment covers a wide range, such as learning difficulties. The requirement that any mental illness must be 'clinically well-recognised' was removed from the definition in the December 2005 changes. Cases already heard have established that M.E. can be classed as a disabling condition.

Someone who is registered with a local authority as blind/partially sighted, or who has a certificate to that effect from an optician, is deemed to be a disabled person under the Act.

Part 2. Does the impairment adversely affect day to day activities?

An impairment that only effects an individuals ability to carry out a specific work-related task would not qualify unless it also effected one of the above list.

Where a person can carry out a day-to-day activity but it causes either pain or excessive fatigue, this can be classed as an adverse effect.

Day-to-day activities are things carried out by most people on a daily basis - but there is a wealth of case law to suggest where a dividing line might fall: for example, activities that are carried out mainly only by either men or by women can qualify as 'day-to-day activities'.

Part 3. Is the adverse effect substantial - or would it be but for the beneficial effects of ongoing medication or other treatment?

Adverse effects must not be 'minor' or 'trivial' - though the cumulative effects of a number of minor impairments can qualify as substantial.

Comparisons between the time taken or the way in which the individual performs day-to-day activities and how someone without the impairment would do the same activities may need to be made.

Where the effects of an impairment are reduced or eliminated, using ongoing medication or other aids (such as hearing aids or artificial limbs), the effects must be calculated without reference to these improvements.

However, this does not apply to sight impairments corrected by use of spectacles or contact lenses.

Tribunals will likely want to hear expert medical evidence of the beneficial effects of ongoing treatments - not just the view of the disabled person themselves.

Severe disfigurements, such as a birth mark or scarring, are treated as having substantial effect, although they may not actually impair a person's ability to carry out normal day-to-day functions.

Certain deliberately acquired 'disfigurements' (e.g. tattoos and body piercings) are excluded.

Progressive conditions

Where a person is suffering from a progressive condition, the Act will cover them from the moment that there is a noticeable effect on normal day-to-day activities - the effect does not have to satisfy the 'substantial' criteria below.

If such a case comes before a tribunal, you may need medical evidence to prove that it is likely that the condition will indeed progress.

A genetic pre-disposition towards a condition is not sufficient to show impairment - where someone in known to be carrying a gene that will or may lead to an impairment, they are only covered from the time that the first effects of the impairment appear - and only then if it is a progressive condition.

Cancer, HIV infection and Multiple Sclerosis

As part of the changes to the definition in December, 2005, anyone who is diagnosed as having any of these conditions is automatically and immediately protected by the DDA. The Government has reserved the power to further define in regulations certain types of cancer that are or are not covered in this way, but have stated at present that they do not intend to make any such regulations.

Part 4. Are the adverse effects long-term?

Fluctuating effects

If a substantial adverse effect ceases but is likely to recur and the likelihood of recurrence extends beyond a 12 month period then it is classed as long-term. However, this supposes that the impairment itself is still in existence.

Depression

There have been difficulties with depression cases, where evidence has suggested that an episode of depression has 'gone away' and that a subsequent depressive episode is regarded as a different impairment, not the recurrence of a fluctuating condition. Evidence of, for example, ongoing treatment and/or medication can be helpful in challenging this sort of claim.

Past disability

Not all impairments are permanent - this is especially true of mental health issues. However, the DDA recognises that prejudice and discrimination may result from a past history.

Anyone who would have had, in the past, impairment(s) that would have qualified them as a disabled person under the Act remains protected by the Act from discrimination arising due to that past history. This extends to people who recovered before the Act came into force.

Since the employment provisions of the DDA came into force, there has been no further 'registration' of disabled people. Anyone who was registered as a disabled person before the Act came into force is likely to automatically qualify for ongoing protection under this part of the Act.

Case by case approach

There is not a prescribed list of medical and other conditions that will or will not qualify under the Act. Each case will have to be judged on its own facts, if and when it comes to be heard before an employment tribunal.

Employers, particularly within the Civil Service, will usually rely on advice from their own medical advisers, in cases of doubt. But even if the Occupational Health adviser reports that the DDA is likely to apply, if a case comes to Tribunal, the employer will often state that they do not believe that the person is covered by the Act.

Dealing with tribunal issues on disability

Arguing that someone who is complaining of disability discrimination to an employment tribunal does not meet the definition of disability within the Act is a standard response for many employers.

If they can succeed with this argument, the individual loses their chance to have their main case heard.

Representatives must assess what information an employer already holds to enable them to work out whether this is a viable defence for the employer to mount.

Due to the need to provide medical expert evidence in front of a tribunal, if such a question comes to a full hearing, it can be expensive for an employee to defend such a claim.

Where there is evidence to suggest that the employer is being malicious or vexatious or he defence is misconceived in claiming this, full use of tribunal rules on these issues should considered including, if appropriate, applications for pre-hearing review of the defence and/or costs orders.

Also, questionnaires may be useful to elicit more detailed information on what the employer is claiming.

Before appearing at a hearing on the issue of disability, representatives are advised to try to establish which parts of the 4 questions listed above are being challenged by the employer: are they claiming that there is no impairment and therefore none of the other areas are covered? Or might they accept that impairment exists and simply be challenging the level of effect on day-to-day activity? It is even possible that the employer may just challenge whether there is an impairment, but accept that if it is an impairment, then the other issues are met.

As already stated, if you are trying to establish the deduced effects of an impairment without the benefit of ongoing medication, you will need to prepare for significant medical evidence to be available to the tribunal.

But also bear in mind that the best people to corroborate what an applicant says about the effects of their own impairment may be others who see them on a day-to-day basis.  

Partners, work colleagues and friends may be better placed to give evidence than a doctor who can only restate what he/she has been told by the applicant or give general information about how such an impairment might affect an individual.