Determining 'disability'

Elliott v Dorset County Council

When considering whether an impairment has a substantial effect on someone’s ability to carry out day-to-day activities, it’s the statutory definition of ‘substantial’ which should be the focus and not the gloss on it provided in the statutory guidance.

Background

Mr Elliott was an IT Systems Manager who was disciplined for false time recording. While the disciplinary was on-going Dorset County Council (DCC) embarked on a restructuring exercise and Mr Elliott accepted redundancy because he was told that the disciplinary proceedings would cease and he’d leave with redundancy and notice pay. He was diagnosed with Autism Spectrum Disorder and DCC didn’t dispute this. However, at a preliminary tribunal hearing, the judge held that Mr Elliott was not disabled because his impairment did not have a substantial adverse impact on his ability to carry out day-to-day activities. Mr Elliott appealed.

EAT decision

The appeal was allowed and remitted for rehearing, with the EAT commenting that ‘the parties may wish to consider … whether determining disability as a preliminary issue is the best way forward’ (a broad judicial hint if ever there was one).

In allowing the appeal, the EAT made some helpful observations about the meaning of ‘disability’:

  • Separating out, and considering separately, the elements of the definition of disability runs the risk that this may be at the cost of maintaining an overview – ‘often the components can only properly be analysed by seeing them in the context of the provision, and statute, as a whole’.
  • It’s important to focus on what the allegedly disabled person cannot do, rather than what they can. The fact that someone can carry out day-to-day activities doesn’t mean their ability to carry them out hasn’t been impaired. And it’s wrong to conduct an exercise balancing what the person cannot do against what they can do.
  • When determining an impairment’s effect, the need to compare the disabled person with themselves as if they didn’t have the impairment rather than comparing the person to people at large.
  • It is important to focus on the statutory definition of ‘substantial’ as ‘more than minor or trivial’ and be aware that where the guidance adds a gloss to this, it’s the statutory wording that should win out if there’s any inconsistency between the two – ‘where consideration of the statutory provision provides a simple answer, it is erroneous to find additional complexity by considering the Code or Guidance’.
  • A coping or avoidance strategy does not undermine substantial adverse effect unless the strategy will always succeed in avoiding the effect and won’t break down, for example when someone is under stress.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2021/0197_20_0904.html

Comment

This is a very helpful case in giving guidance to employers in this complex area. The practical effect is that it makes it harder to argue that there is not a substantial adverse effect and clear signposting by the courts of not having this considered as a preliminary point. Of course, the practical problem is that if an employee has not been employed for two years but claims disability discrimination, then if they are not disabled the whole claim falls away and so it is important to have this point decided at an early stage. However, if they have been employed for two years and there is an unfair dismissal claim anyway, careful thought should be given as to whether arguing this as a preliminary point is worth it.