Thu 22 Apr 2021

Disability Discrimination

EAT gives helpful guidance on meaning of "substantial" in the Equality Act 2010 when determining substantial adverse effect 

In Elliot v Dorset County Council the Employment Appeal Tribunal (EAT) overturned the Employment Tribunal's (ET) decision that the Claimant was not disabled, finding that the ET erred in its approach in determining whether the claimant's impairment had a substantial adverse effect on his ability to carry out normal day-to-day activities.

The Claimant had been employed by Dorset County Council as a Geographical Information Systems Manager since 1984. In 2018 he was assigned a new line manager and not long after he was subject to disciplinary proceedings alleging that he was absent during the working day and was falsely recording more hours than he had worked. He refuted these claims arguing that he in fact worked considerably longer that his contracted hours, often working late at night at home. During the disciplinary proceedings, the Claimant’s trade union representative suggested that the Claimant be assessed to establish whether he was on the autistic spectrum. Following the assessment, he was diagnosed with Asperger's Syndrome. The Employment Judge referred to a list of the Claimant's traits including: “…unflinching honesty;…difficulty with back and forth conversation;…and, procedural compliance and dislike for any digression from rules, established policy or procedures.”

The ET found that the Claimant's Asperger's wasn't "substantial" having considered the Claimant's ability to do certain things compared to the general population's ability to do those things. The EAT's ruling reminds us that the correct approach is to compare the Claimant's actual ability to carry out an activity compared with how he would carry it out if he did not have the impairment. This requires a comparison with people who are broadly similar to the Claimant (but without the impairment) and not the general population. The key focus is whether the Claimant's impairment has a substantial effect on his ability to carry out normal day to day activities and to do this the ET should look at what a person cannot do, or can do only with difficulty, rather than on the things that the person can do. The EAT also reminds us that “substantial” is defined in the Equality Act 2010 as “more than minor or trivial”, meaning the bar is much lower than the word "substantial" might suggest. Furthermore, it held that the statutory definition of "substantial" prevails over any guidance and that an ET should only take into account any guidance if the statutory definition fails to deliver a conclusive answer.

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