Disability Discrimination – It’s All About the Bass-ics.

Your employee is suffering from “moderate anxiety/depression” according to the occupational health report you’ve received.  But does that mean that your employee is disabled under the Equality Act 2010?  You flick to the answer in the report – “The definition of disability under the Act is a legal decision and not a medical one” – so what now?

As discussed in our article on understanding occupational health reports, it’s you as the employer who has to make a judgment whether your employee is disabled based on the content of the medical reports you have obtained.  If you believe that it is more likely that not that the employee has a physical or mental impairment which has a more than trivial adverse effect (likely to last more than twelve months) on their ability to carry out day-to-day activities, then it’s best to play safe and make all the reasonable adjustments you can.

What if they’re obese?  Just apply the normal test and focus on their impairment, rather than their physical characteristics.  This has been recently confirmed by the ECJ in the Danish case of FOA (Kaltoft) v Billund which held that obesity of itself is not a disability; the focus should be on whether the obesity “may hinder the full and effective participation of that person in professional life”.

In the recent case of Saad v University Hospital Southampton NHS Trust, the employer had argued that the employee’s depressive and general anxiety disorder had neither a substantial adverse, nor a long-term effect on his ability to carry out normal day-to-day activities.  The EAT agreed and his claim failed.

I have personally previously defended a claim for a client where we successfully argued that the worker’s diagnosed epilepsy did not amount to a disability for the same reason.  The worker in my case had also tried to argue that climbing tall ladders, swimming in the open sea and getting drunk were all day-to-day activities.  He backtracked on the last one when pressed by the Judge.

In conclusion, always consider all reasonable adjustments which could be made to the workplace to alleviate any substantial disadvantage suffered, but (provided that you’ve got some decent evidence) don’t be afraid to argue your case in the tribunal whether the individual is actually disabled if the case ever gets that far.

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