There are many parts to the statutory definition of “disability” that need to be fulfilled before one can be deemed a “disabled person;” none less so than the effect of the impairment – physical and/or mental – on one’s normal day to day activities. Remember, we are concerned with a ‘statutory’ definition under the Equality Act 2010 (‘the Act’). Therefore, focussing solely on the impairment is generally insufficient (there are exceptions).
This means, generally, if one proves that they have an impairment but fail to show the substantial (more than minor or trivial) and long-term (that has lasted at least 12 months; where the total period for which it lasts, from the time of the first onset, is likely to be at least 12 months; or that is likely to last for the rest of the life of the person affected) adverse effects of the impairment on their ability to carry out normal day to day activities they will not be deemed a disabled person under the Act. In the recent EAT (sitting in Edinburgh) case of Francis Mutombo-Mpenia v Angard Staffing Solutions Ltd the Claimant suffered from essential hypertension (impairment) and, therefore, claimed to be a disabled person under the Act. There was no dispute that he suffered from the alleged impairment but he failed to adduce evidence of its adverse effect on his normal day to day activities let alone whether such were substantial and long-term. Therefore, he failed to discharge the burden of proof that he was a disabled person as defined under the Act.
Notwithstanding the above, however, another interesting point was in issue, which ought to be of interest to employers and HR practitioners. The Claimant had completed the Respondent’s recruitment process. An application form formed part of this process on which he indicated that he did not consider himself to have any form of disability – See “Why People Hide Their Disabilities At Work” by Harvard Business Review. After he was appointed he refused to work on some (not all) night shifts due, generally, to his ‘health condition.’ The question is, was this (‘due to the Claimant’s health condition’) enough for the Respondent to have had constructive knowledge that he was a disabled person under the Act? No, said the ET to which the EAT agreed. The ET took the view that the Claimant’s reference to his ‘health condition’ was something that should have, “put the Respondent on notice to make further enquiries,” but it did not go so far as to say that the Respondent had failed to make such further enquiries.
Lessons to be learned. Firstly, it is important to note that reference to an impairment alone is, generally, insufficient to prove that one is a disabled person under the Equality Act 2010. Secondly, even if an applicant indicates that s/he is not a disabled person or do not believe themselves to be disabled is not conclusive and or determinative of the issue. For example, they may not even know! There was a case where a person was diagnosed with cancer. The question in that case, for the purposes of establishing when that person had an impairment, was it on the date it was ‘diagnosed’ or on a date prior to that where it can established that the the person must have ‘had’ the impairment? For example, if X clearly had an impairment on around 1 January but was unaware of it at the time but was diagnosed with it later on 1 June, when did X actually have the impairment? In this case it would be the former (1 January) and not the latter (1 June) – As the EAT held in Bennett v MiTAC Europe, “It is important to distinguish between a person having cancer and having been diagnosed as having cancer.” Finally, unlike in Mutombo-Mpenia, an employer could be found to have constructive knowledge of its employee’s disability – even where initially that employee had indicated to the contrary – if there are sufficient signs in place to indicate such and the employer fails to make such further enquiries accordingly.
Ryan Clement, LLM, BA, BSc, barrister
https://www.youtube.com/@RyanClement1
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Ryan Clement 