Definition of Disability

Definition of Disability – Recent case update

In order to bring a claim in the Employment Tribunal for disability discrimination you must first prove to the Tribunal that you have a disability. The law that governs claims for discrimination is now the Equality Act 2010.

The definition of disability has evolved over time through various cases. In summary in order for your condition to be considered a disability under the Equality Act 2010 it must be a ‘physical or mental impairment that has a substantial and long-term negative effect on your ability to do normal activities’.

In a recent case in the Employment Appeal Tribunal they had to decide whether a Tribunal should look at the activities that a disabled person can do or those they cannot do when assessing if a person meets the criteria within the Equality Act to claim disability discrimination.

In this recent case Mr Aderemi was employed by London & South East Railway as a station assistant. His job was to be present at the station to check tickets and assist passengers. His shifts lasted for about 9 hours and he spent most of the time on his feet standing or walking around.

Unfortunately Mr Aderemi developed a back problem which mean that he could no longer stand for long periods of time and as a result his employer dismissed him.

Mr Aderemi brought a claim in the Employment Tribunal for unfair dismissal and disability discrimination, claiming that his condition was a disability and therefore he had protection from discrimination under the Equality Act.

The Employment Tribunal decided that Mr Aderemi’s condition was not a disability as it did not meet the criteria above. In particular they focused on the various things that he could do and said that because of this his condition could not have a substantial adverse effect on his day to day activities.

Mr Aderemi appealed against the Tribunal decision and the Employment Appeal Tribunal looked at the situation again. They decided that the Tribunal had been wrong to focus on the things that Mr Aderemi could do and they should instead have looked at the things that he cannot do because of his condition. Included within the things that he could not do were the ability to stand for longer than 30 minutes, to bend and lift, all of which had an effect on his day to day activities.

What does this case mean for me?

If you are claiming disability discrimination or you believe that you may have a disability  then it is important to focus on the things that you cannot do because of your condition.

We recommend that you make a list of the things that you cannot do, and a useful way to do this would be to carry a diary for a day or two and write in the diary all of the things that you find difficult or cannot do because of your condition. You may be surprised by the number of changes you make to your normal routine because of your disability and the only way to recall all of them is to write them as you go along.

This will also be excellent evidence if you have to give an account to the Employment Tribunal about how your disability affects you.

There will be more articles to follow regarding disability discrimination, and if you have any comments or questions please add them below and we will attempt to address them for you.