Disability discrimination – impairments and their effects

Disability discrimination – impairments and their effects

Key contact: Claire Knowles

Author: Rebecca Mahon

In order for a claim of disability discrimination to succeed under the Equality Act 2010, the claimant must have:

  1. a physical or mental impairment; and
  2. that impairment must have a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.

In the case of Khorochilova v Euro Rep Limited determined earlier this year, the EAT were asked to consider whether a strictly sequential approach to determining whether or not someone is disabled is appropriate or whether, as the claimant in this case argued, it could potentially lead to unsatisfactory results. The claimant’s position on appeal was that the tribunal had decided that her “mixed personality disorder” was probably not an impairment, and so then didn’t give proper consideration to “limb b” of the above test.

Very early on in his judgement, Justice Choudhury acknowledges that the question of how to approach the two-stage test on disability has been before the tribunal before in J v DLA Piper. He says “whilst it has been made clear that the Tribunal should not adopt a rigid sequential approach to the questions that need to be asked of it…there can be no error of law in seeking to identify whether or not a person has an impairment as that is what the statute expressly requires”.

In the present case, a doctor had described the claimant as having a “mixed personality disorder” which meant that she had a tendency to be “somewhat obsessive” and “a perfectionist”. Within the doctor’s report (which was seven years old at the point of the hearing) and in coming to the conclusion that she had a mixed personality disorder, the doctor said that the claimant had “problematic personality traits”.  The tribunal at first instance came to the conclusion that whilst the doctor described the claimant’s condition as a “disorder”, having problematic personality traits, for which no medication was prescribed, was not likely to be an impairment capable of being a disability. Justice Choudhury confirmed his broad agreement with this assessment, stating in his analysis “all persons have certain personality traits some of which may be considered problematic”. However he was keen to emphasise that “in the absence of an express conclusion that such personality traits do not amount to an impairment, the real question is whether or not there was evidence of a substantial adverse effect on the Claimant’s ability to carry out normal day-to-day activities”.

Justice Choudhury was directed by the claimant to The Code of Practice of Employment 2011, which lists factors which, if they are experienced by a person, it would be reasonable to regard as having a substantial adverse effect on normal day-to-day activities.  Justice Choudhury assessed two factors in particular, being: “frequent confused behaviour, intrusive thoughts, feelings of being controlled or delusions,”; and “compulsive activities or behaviour or difficulty in adapting after a reasonable period to minor changes in a routine”. Whilst Justice Choudhury accepted that there was some evidence that the claimant may experience these factors, there was no specific evidence. Accordingly, it was reasonable for the tribunal to have come to the conclusion that it did (being that there was no substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities). The claimant’s appeal was dismissed.

This case highlights the importance of addressing both the issue of impairment and substantial adverse effect when considering the issue of disability under the Equality Act 2010. Those of you who have attended Acuity’s Equality Act training sessions will know that we are always keen to emphasise that disability under the Act is not a “blue badge test”, and requires a much more rounded assessment in each instance of the impact of any stated impairment on the employee in question.

If you would like further guidance or support, or training delivered in-house on the Equality Act 2010, please contact our employment and immigration team.

Claire Knowles – Partner

Mark Alaszewski – Associate

Rebecca Mahon – Solicitor

Adam McGlynn – Trainee Solicitor

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