Disability Discrimination: Determining whether an impairment has a substantial adverse effect

Published 29 April 2021

In this case, the EAT considered how to approach the question of whether an impairment has a substantial adverse effect on a claimant’s ability to carry out day to day activities.

Mr Elliott was employed by Dorset Council. He was subject to disciplinary proceedings by a new line manager in which it was alleged that he had falsely recorded his working times, recording more hours than he had worked. Mr Elliott said that he had agreed with his previous line manager that he would record working hours of 9 to 5, irrespective of the exact hours he worked and that, on occasions he was absent during the working day, but often worked until late into the night at home, working considerably more than his contracted hours in total.

During the disciplinary proceedings, Mr Elliott’s union representative suggested that Mr Elliott should consider an assessment to establish whether he was on the autistic spectrum because of some of the characteristics that he was displaying when trying to deal with the problems with his manager.

The specialist nurse carrying out the assessment gave his opinion that Mr Elliott met the criteria for a diagnosis of an Autism Spectrum Disorder, and diagnosed him with Asperger’s Syndrome.  

However, before the assessment or the disciplinary process were complete, Mr Elliott was offered and accepted voluntary redundancy.

Mr Elliott claimed in the employment tribunal that he had suffered disability discrimination. The tribunal held that Mr Elliott was not disabled because his mental impairment did not have a “substantial” adverse impact on his ability to carry out day to day activities.

Mr Elliott appealed to the EAT, which upheld his appeal.

The EAT’s judgment includes several points, following existing case law, which will be of interest to employers.

• Unless an impairment is minor or trivial, it will be considered substantial.
• The fact that a person can carry out day to day activities does not mean that their ability to carry them out has not been impaired. In determining whether someone is disabled, tribunals should focus on the things that the person either cannot do, or can only do with difficulty, and not on the things that the person can do.
• The correct approach is to consider how the person carries out the activity compared with how that person would carry it out if not suffering from the disability. This is not a comparison with how other people carry out the activity.
• The fact that an individual has coping mechanisms which mitigate the impact of the disability does not necessarily mean that they are not disabled.

The question of whether or not Mr Elliott is disabled was remitted to a new tribunal.

WHAT DOES THIS MEAN FOR EMPLOYERS?

This judgment does not create any new law. It is, however, a useful reminder of some of the more complex points that can arise in assessing whether someone has a disability and the tests the employment tribunals will use when determining disability

Mr A Elliott v Dorset County Council UKEAT/0197/20LA