In the case of Stedman v Haven Leisure Ltd the Employment Appeal Tribunal (EAT) has provided helpful guidance on how to determine if an impairment has a "substantial adverse effect" on a person’s ability to carry out normal day-to-day activities. This is relevant to whether that person is disabled for the purposes of the Equality Act 2010.
Background
The Claimant in this case, Mr Stedman, had been diagnosed with Autism Spectrum Disorder (ASD) and Attention Deficit Hyperactivity Disorder (ADHD). He brought a claim for disability discrimination against Haven Leisure Limited (Haven) after they rejected his application to work for them. At a preliminary hearing, the Employment Tribunal (ET) determined that Mr Stedman was not disabled for the purposes of the Equality Act 2010. He appealed against that decision to the EAT.
The relevant law
The definition of a disability is set out at section 6 of the Equality Act 2010. It says that:
(1) A person (P) has a disability if—
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.
“Substantial” for these purposes means more than minor or trivial.
The ET decision
Although the ET accepted that Mr Stedman suffered from long-term mental impairments (i.e. ASD and ADHD), having reviewed the impact statement and oral evidence he provided it decided that they did not have a substantial adverse effect on his ability to carry out day to day activities. For example, Mr Stedman had said in his impact statement that he has difficulties with memory and concentration which affected his academic performance. The ET took the view, however, that because Mr Stedman had performed well academically, including obtaining a degree, the effect of his impairment was not “substantial” in this respect. It took a similar approach to the other difficulties that Mr Stedman set out as part of his case and determined that, overall, Mr Stedman’s ASD and ADHD did not have a substantial adverse effect on his ability to carry out day to day activities.
The EAT decision
The EAT said that the ET had taken the wrong approach by weighing what Mr Stedman could do against what he could not do. To continue the example given above, what the ET should have done was to look at whether he would have performed even better academically had he not had difficulties with memory and concentration, not just looked at what he had actually achieved.
The correct comparison, then, is between the person and a hypothetical version of themselves without the disability, not the person and others. To use a further example given by Mr Stedman’s counsel and cited by the EAT “if playing tennis were a day-to-day activity, a professional wheelchair tennis player with a mobility-related physical disability would satisfy the definition of disability as regards the activity of playing tennis even though their tennis-playing abilities far exceed those of an average adult because, if they did not have a mobility-related disability, they would likely play even better”.
The EAT said that the ET was also wrong to look at Mr Stedman’s abilities in the round – what it should have done was to consider each of the adverse effects that he claimed separately. It remitted the case to a fresh tribunal to decide if Mr Stedman was disabled for the purposes of the Equality Act.
The EAT also said that a diagnosis of ASD or ADHD is not only relevant to the question of whether a person has a mental impairment, but also to the question of whether that impairment has a "substantial adverse effect" (and so whether it could constitute a disability). As the EAT said “[the] diagnosis means they have been judged by a clinician to have significant (i.e. clinically 'more than minor or trivial') difficulties with the areas of functioning covered by the diagnosis”. A tribunal must therefore take a diagnosis of ASD or ADHD into account when thinking about how that impairment affects the individual concerned. These comments were made obiter (i.e. this point was not essential to the decision in the case and so is not binding as a precedent) but nonetheless will be helpful when an employer is making a judgement on whether someone is or could be disabled for the purposes of the Equality Act, and may have relevance for other mental impairments.
Summary and practical considerations
The key points from this judgment are that when looking at whether an impairment has a substantial adverse effect on person’s ability to carry out normal day-to-day activities:
- it is enough for the definition to be met that there is a substantial adverse effect on just one day-to-day activity;
- tribunals should not weigh what a person cannot do against what they can do; and
- in deciding whether the adverse effect is substantial, the correct comparison to make is between the person as they are and as they hypothetically would be without the impairment not between that person and others.
Employers should bear these points in mind when thinking about whether an employee may be disabled for the purposes of the Equality Act and, in particular, when requesting evidence of the effects of an impairment from occupational health or an employee’s own doctor. Correctly identifying whether an employee is disabled will be critical in ensuring that employers fulfil their duties to those employees and can help to reduce legal risk.
Abigail McKean