Assessing physical disability for the Equality Act 2010.

The Equality Act 2010 incorporated the relevant parts of the Disability Discrimination Act in relation to disability.

The definition of disability remained  ‘ A physical or mental impairment that has a substantial and long-term effect on the person’s ability to carry out normal day-to-day activities’.

Confusion often arises when this statement is not taken literally. The definition states ‘day-to-day activities’ , in other words, activities that we would call ‘activities of daily living’. It is if these activities are affected that the person is defined as disabled under the Act and this then has implications on the workplace as to what reasonable adjustments are required.

For some people this is relatively easy to assess, because they are not functioning in the home, although some people even seem to struggle with this as a concept.

In a recent case I saw a person had suffered from uncontrolled inflammatory arthritis for over 20 years and was on top level disease-modifying medication, which was not 100% effective. She had already had two major joint replacements at the age of 45, and her disease flared up several times a year in spite of the medication. Her employer was refusing to let her work from home occasionally (during flares of the condition) and would not make any adjustments to accommodate her work environment even though these would, in this case, have been cost neutral. After my report she was accepted as disabled under the EA.

Another recent case showed the other side of the story. A Claimant in a personal injury case had suffered an injury that had left him with some disability meaning that he could not do his original job in the manner he had before the injury. The Barrister though he would qualify under the EA until I advised that in fact he could manage all activities of daily living perfectly well, it was only the heavy work that he was unable to manage; since this was not normal daily activity, it would not qualify under the EA. It was accepted in this case that the person in question would not qualify.

There are various examples given in the literature about what would and would not qualify in these cases. The important facts are a) ‘long term’ – i.e. in excess of 12 months, and b) ‘substantial’ – there must actually be a disability (an inability to manage tasks) not merely an impairment (able to manage the task but having to modify how). ADLs would be considered such things as getting in and out of bed, washing, dressing, housework, cooking, shopping, walking, use of stairs, bending, moderate lifting, manual dexterity in addition to visual and auditory ability and the very important mental health aspects which are all also included.

Mr R Scott-Watson BSc(Hons) MB BS LLB(Hons)(Open) DDAM CUEW FRCS(Ed)

Orthopaedic Surgeon. Personal Injury and Employment Tribunal Expert since 1990

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