didlaw | June 2014
View this email in your browser

In this edition of our newsletter rather than updating you on cases you can read on our blog we bring you the first in a series of articles on disability discrimination law.

The aim? To tickle your fancy… To invite you to consider how far you understand the law?... To give you some practical advice on how to manage disability.

Why? Because that’s what we do! So where to begin? At the beginning of course.

And the beginning is… 
The definition of disability

An employee cannot bring a disability claim without demonstrating that he or she has a disability. No disability, no disability discrimination. In some cases disability will not be in dispute – namely where there is a so-called “automatic” disability – cancer, MS, HIV, severe sight impairments. In all other cases it’s about showing not that you have a clinically defined illness – that’s not enough – it’s about the impact on you. No impact, no disability, in a nutshell. And of course the impact has to be substantial and long-term. It’s no small feat meeting the definition but still a lot of claimant employees, and employers for that matter, think that as long as there’s an illness which is long-term it is a disability. So do many OH advisers, HR advisers and medical practitioners. Not so! Illness does not equate to disability. There are more hurdles.

Disability is defined at section 6 of the Equality Act 2010 but the definition there is typically broad and apparently simple. It is anything but. What this means is that there is actually a lot of misunderstanding about what disability is. I aim to clarify.

Firstly, there must be an impairment. It can be mental or physical or both. Impairment means what it says on the tin. A person is impaired. It doesn’t mean the impairment has to be a clinically well-recognised disorder. You might not even be able to label it but it can still be an impairment.

The impairment must have a substantial effect on the person. Some people might have what could be viewed as a serious illness but it might not have an impact on their daily life. If it doesn’t there won’t be a disability.

Long-term is the part of the definition most people seem to understand best. Long-term means it has lasted or is likely to last twelve months or more or it might be life-long. The critical thing to remember about long-term is was the impairment assessed to be long-term when the discrimination is alleged to have occurred? If it was not the claimant cannot later rely on the fact that it has become long-term after the fact. That’s where it gets tricky.

Finally the impact must affect normal day to day activities. This part of the definition has been the subject of a number of cases over the years. The upshot however is that this is increasingly being given a broader definition to cover some work activities that would not have been covered under the DDA. The cases on definition continue to turn up surprising results. Check Sussex Partnership v Norris on the blog.

The most pressing issue around definition of disability right now is whether obesity is a disability. With 64% of the UK workforce said to be obese a finding by the European Court that obesity is a disability could have wide-reaching implications. The EAT recently held in Walker v Sita that obesity is not a disability in itself but might be capable of being one if there is a significant degree of functional impairment.

The ECJ is hearing Kaltoft v Billund Kommune as I write. Watch this space!
didlaw is a trading name of Didlaw Limited, a limited company registered in England & Wales under number 8642712.
The registered office is at Antrobus House, 18 College Street, Petersfield, Hampshire, GU31 4AD. 
Director: Karen Jackson, Solicitor.

Copyright © 2014 didlaw Ltd, All rights reserved.

unsubscribe from this list    update subscription preferences 

Email Marketing Powered by Mailchimp