What is a Disability?

NelsonIn the United Kingdom, the general question of what constitutes a disability is extremely subjective and although the protection afforded by the Equality Act 2010 only applies to those with disabilities falling within the specific definition contained in that Act, there are other public definitions and requirements which are used to determine eligibility for such things as financial allowances or participation in mobility schemes.  Before considering the protection available to those with disabilities through the current equality legislation it is important to consider the limitations of the legally adopted definition of a disabled person which is relevant in this area.  Although this can be viewed as the criteria for inclusion in the protective regime it should also be considered that compliance with the definition is the first hurdle to overcome in order to avoid being excluded from protection.  One criticism of this approach is the scrutiny to which a disabled person is subjected and the approach of a defending employer is often to challenge the disabled status, without the need to justify any potentially prohibited conduct.[1]

Defining Disability

Although Section 6 of the Equality Act 2010 defines the protected characteristic of disability, Part 1 of Schedule 1 provides further provisions on the definition, as does the Equality Act (Disability) Regulations 2010 [2] and the Office for Disability issued guidance[3]. Although not primary legislation, the guidance must be considered by employment tribunals when determining if an individual is disabled under Section 6[4].  Under Section 6 a person has a disability if they have “a physical or mental impairment” and “the impairment has a substantial and long-term adverse effect on” their “ability to carry out normal day-to-day activities”[5].  The wording of the definition does not materially differ from that given under the Disability Discrimination Act 1995 although the application of the definition has changed overtime due to changes in the guidance and the addition of case law in constructing its meaning.

Under the Framework Employment Directive (2000/78/EC)[6], disability forms one of the grounds under which there is the stated target of combating discrimination through the principle of equal treatment.  However, there is no definition, including restrictions, caveats or exceptions, as to what determines if a person is disabled with regard to the protection afforded by the Directive.  From a European perspective the guidance, on what does and doesn’t constitute a disability, was provided by the case of Chacon Navas v Eurest Colectividades[7] and this goes some way to set out the European Council’s position. The ECJ acknowledged that when determining the concept of disability the landscape was dynamic and there existed a changing approach between the social and medical models of disability and the ECJ called for caution in a static definition of disability.[8]  However, in Chacon Navas[9] the ECJ also referred to a uniform application of Community Law and that there must be some standard approach to the concept of disability.  It was the conclusion of the ECJ that it was the intention of the directive that the concept of disability was “a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life.”  Although the ECJ differentiated between sickness and disability and in particular, for a limitation to be considered as a disability, it was required that it was probable to last a long time, however, there was no indication what the scope of probability or a long time were.[10]  Despite there being a general acceptance of the benefits of a social model of disability and with the Framework Employment Directive (2000/78/EC)[11] allowing for such an approach in setting a definition of this kind the ECJ has firmly placed the European Council’s approach to disability within a medical model.[12]

Historically in the United Kingdom the Disabled Persons (Employment) Act 1944, although unfulfilled, had provided a potentially much wider scope of disability, in that a disabled person was “a person who on account of injury, disease, or congenital deformity, is substantially handicapped in obtaining or keeping employment, or in undertaking work on his own account, of a kind which apart from that injury, disease, or congenital deformity would be suited to his age, experience and qualifications.”[13]  In order to maintain protection for those covered under Disabled Persons (Employment) Act 1944, on the introduction of the Disability Discrimination Act 1995 those previously registered were automatically considered disabled[14].

Although to be considered disabled for the provisions of the Disabled Persons (Employment) Act 1944 a person needed to be registered disabled, this provided a restrictive precondition that a person was registered as opposed to could possibly be registered, which was not a requirement under the Disability Discrimination Act 1995 or the Equality Act 2010 which rely solely on the application of statutory definitions.  In some cases countries have opted not to define disabilities in their legislation and leave a broad scope of protection as in Belgium, Greece and Italy.  However, in taking this approach to the implementation of the Framework Employment Directive (2000/78/EC)[15] there have been concerns raised that courts in those countries will link protection from disability discrimination to the tighter requirements used in the provision of financial social benefits[16].  In the United Kingdom the tighter definitions used with regard to eligibility for disability based allowances, such as the medical assessment of the Disability Living Allowance, would limit the protection available from disability discrimination legislation to those disabilities which are tightly defined by a medical model of disability.  Concerns have been raised by the Directorate-General of Social Affairs that such an approach is not compliant and severely limits the intended protection of legislation, such as in Slovenia where only officially recognised disabilities are afforded equality protection[17].

Where definitions are present in legislation it may be considered that this is a restrictive approach, as in order to proceed with litigation an individual must first prove that they meet this definition before the courts allow them to argue that they have been subject to prohibited treatment.  Anybody failing at this first hurdle receives no protection from the law and in this respect the Directorate-General of Social Affairs has been critical of the United Kingdom’s approach to the protection afforded to those with disabilities.  It has been commented that the application of definitions may be broader under an arbitrary approach when deciding if an individual is disabled or not, and as such if they are afforded any protection under the law[18].

In consideration of a social model of disability, as adopted by the United Nations Convention on the Rights of Persons with Disabilities[19], the Joint Committee on Human Rights[20] concluded that there should be protection to all those with disabilities without the need to assess the effects of the impairment under the United Kingdom’s definition to be either substantial or long-term.  In reaching this conclusion, it considered that the ability to justify discrimination in the area of indirect discrimination or discrimination arising from a disability as well as the need for there to be a substantial disadvantage before the need to make a reasonable adjustment arose, provided adequate protection to employers as well as those involved in the provision of services, from the potential for abuse.[21]  However, these recommendations were rejected by the Government and were not incorporated into the Equality Act 2010.[22]

When determining if a person is considered disabled the EAT in Goodwin v Patent Office[23]  provided a four part analysis of the Disability Discrimination Act 1995 definition of the protected characteristic of disability, in that a claimant must satisfy each of these four conditions to fall within the required definition. In breaking down the definition now found in the Equality Act 2010 these conditions are the presence of; an impairment, an adverse effect, the substantial nature of the effects and its long-term nature.[24]  This four part test applies in relation to ‘normal day-to day activities’ and before evaluating the question of what constitutes normal day-to-day activities should be considered.

Normal Day-to-Day Activities

To qualify as a disability under the definition, an impairment must affect a person’s ability to carry out “normal day-to-day activities”.[25] Although guidance was available under the provisions of the Disability Discrimination Act 1995 [26] which has now been reviewed and revised following the Equality Act 2010 [27], the case law which has been incorporated into the latest guidance as to what constitutes normal day-to-day activities has arisen with a broad range of judicial interpretation.

The EAT in Ekpe v Commissioner of Police of the Metropolis[28] considered that the correct approach for determining the effects of an impairment on normal day-to-day activities.  In this case the claimant had an impairment of the right hand which precluded them from a number of activities.   However, the tribunal concluded that because the claimant could use her left hand to carry out these precluded activities there was no substantial effect. The tribunal also concluded that the activities cited, such as putting in hair rollers and applying make up, were not normal day-to-day activities because they were conducted by a particular group of people rather than the population in general, the group being women.  This conclusion was arrived at following the tribunal’s interpretation of the guidance[29] which stated that it was not the intention of the phrase ‘normal day-to-day activities’ to include activities which were only carried out by individuals or groups of people[30].  The EAT concluded, that the tribunal had erred in its judgement in that the focus had been on what the claimant could do rather on what she could not do and furthermore that the tribunal had adopted a piecemeal approach in assessing the effect of her impairment[31].

Goodwin v Patent Office[32] provided that the when considering the effect of an impairment on normal day-to-day activities the focus should be on what an individual cannot do rather that what they can do or do with difficulty.  In this case, what should be construed as normal day-to-day activities was left deliberately broad and it was put by Morrison J that “What is a day-to-day activity is best left unspecified: easily recognised, but defined with difficulty.” Although, it was provided that, an assessment of the effect of an impairment on the ability to carry out normal day-to-day activities applied equal to both home and work environments[33].

In Chacon Navas v Eurest Colectividades[34] the ECJ made specific reference to impairments which “hinders the participation of the person concerned in professional life.”  This approach would seem to give a wider scope for consideration of what should constitute a day-to-day activity.  In Paterson v Commissioner of Police of the Metropolis[35] it was held that normal day-to-day activities included taking examinations and undergoing assessments in relation to his specific employment.  However, in Chief Constable of Lothian and Borders v Cumming[36] the individual in question failed a medical screening due to a visual impairment of her left eye, whereas her right eye had excellent vision.  The tribunal had found that she was disabled as her impairment had limited her access to professional life but this was overruled by the EAT who found that her impairment did not substantially effect her ability to carry out day-to-day activities and that the case law provided by Paterson v Commissioner of Police of the Metropolis[37] and Chacon Navas v Eurest Colectividades[38] did not support a wider scope for day-to-day activities and that “participation in a particular professional life did not , on its own, amount to day-to-day activity” [39].

Impairments

The Disability Discrimination Act 1995 had the same requirement as that currently in place through the Equality Act 2010, that in order to be considered disabled an individual must have a mental or physical impairment[40].   However, for an impairment to have the necessary effect on normal day-to-day activities required to engage the protection, Schedule 1 of the Disability Discrimination Act 1995 required effect of the physical or mental impairment had to fall into at least one of eight stipulated categories: (a) mobility, (b) manual dexterity, (c) physical coordination, (d) continence, (e) ability to lift, carry out or otherwise move everyday objects, (f) speech, hearing or eyesight, (g) memory or ability to concentrate, learn or understand, or (h) perception of the risk of physical danger[41].  An important improvement in level of protection occurred in 2005 with the removal of the requirement for a mental impairment to be ‘a clinically well recognised illness’.[42]  A further increase in the protection available occurred with the introduction of the Equality Act 2010 which removed the requirement that the effect of an impairment had to fall into one of the former eight categories and the revised guidance provides greater flexibility by removing any requirement to categorise an impairment and it is satisfactory only that a physical or mental impairment exists[43].

Goodwin v Patent Office[44] provided the early guidance regarding the interpretation of disability legislation and although now incorporated in the guidance, Morrison J initially provided that, although the explicit and implied intentions of Parliament in enacting social legislation of this kind should be considered, the words used should be given their ordinary meaning[45].  In the case of McNicol v Balfour Beaty Rail Maintenance[46] the Court of Appeal confirmed that the term impairment should be given its “ordinary and natural meaning”[47].

McNicol v Balfour Beaty Rail Maintenance[48] drew from the case of College of Rippon and York St John v Hobbs[49] where the EAT concluded there was no statutory definition of what constitutes an impairment and that is was reasonable for a tribunal to conclude that from the available evidence whether or not their was something physically or mentally impaired with the person in question.  It also concluded that as there was no rigid distinction of the meaning of impairment and that any ‘blurring’ which occurs with the ordinary use of words was something that was acceptable.

In Millar v Inland Revenue Commissioners[50] it was concluded that a physical impairment could be established without the need to consider the cause of the impairment or the need to make reference to a specific illness. This reiterated the judgements in McNicol v Balfour Beaty Rail Maintenance[51] and Rippon and York St John v Hobbs[52]and in the former Mummery LJ stated that ‘an impairment may result from an illness or it may consist of an illness” with the proviso that if it is a mental impairment ‘it must be a “clinically well-recognised illness”’[53], and as previously stated a proviso that is no longer an additional hurdle for recognition.

Although the current guidance has a chapter entitled ‘Meaning of Impairment’[54] the actual meaning of the word impairment remains undefined, other than by its ordinary meaning, and references centres on any effects that the impairment has on the individual.  Although as a consequence the range of permissible impairments is left extremely broad, with the exception of specific named conditions where there need not be any impairment, the focus is on the consideration of the effects of impairments.

Adverse

Although the guidance was redrafted for the Equality Act 2010[55] there were no major changes and it remains the case that the adverse effect of a disability limits normal day-to-day activities in a way which goes “beyond the normal differences in ability which exists among people”.[56] When considering if the adverse effect of an impairment is substantial the guidance provides that comparisons are made between the individual with the impairment and an individual without, in the areas the time taken to carry out normal day-to-day activities, the way in which a day-to-day activity is carried out and any cumulative effects.[57]

The way in which an individual behaves should be taken into account when considering if an impairment has an adverse effect.  The guidance suggests that where an individual’s behaviour is such that an impairment may no longer be deemed to limit day-to-day activities this may lead to the conclusion that there is no adverse effect, and provides the example of where a person with back pain engages in parachuting.  Conversely, where an individual avoids activities due to an impairment this should not lead to the conclusion that their day-to-day activities are unaffected.  Goodwin v Patent Office[58] provided that coping strategies of disabled people must also be considered when considering if an impairment has an adverse effect.  The guidance reiterates the judgement from the EAT in the case of Leonard v Southern Derbyshire Chamber of Commerce[59] that while consideration must be given to the overall effect of an impairment the focus should be on what an individual cannot do rather than what they can do.

Substantial

Consideration of the meaning substantial with regard to the effects of impairment was made by Morrison J. for the EAT in Goodwin v Patent[60] in that, with reference to the guidance[61], substantial means more than minor or trivial[62].

Where there is ongoing medical treatment, the substantial nature of the adverse effect should be considered as if the treatment was not in place.[63] The wording of the Equality Act 2010 refers to the “likely” effects that would be present without the treatment in place and the judgement in SCA Packaging v Boyle[64]  considered that this was “could well happen” rather than the higher hurdle of “more probable than not”.  The guidance provides that consideration of the impact of medical treatment applies where there are no apparent effects or the impairment is completely under control. In Carden v Pickerings Europe[65] the corrective nature of metal pins and plates which had been in place for 20 years were considered as medical treatment which was still correcting the substantial adverse effect of the broken ankle.  Although the impact of some medical treatment may be identified with relative ease, such as prosthetic limbs or hearing aids, the impact of medical treatment may not be clear.  In Kapadia v Lambeth LBC[66] counselling sessions for depression were ruled to be medical treatment for the determination of the presence of a substantial adverse effect.

Where medical treatment is not ongoing, it may not be considered.  In Abadeh v BT[67] the EAT ruled that the tribunal should only consider ongoing treatments and that if a course of treatment had ceased it could no longer take regard of the impact of the treatment, more importantly where the ceased treatment had reduced the adverse effect of an impairment below the threshold of a substantial level there was no longer a disability.   There is some lack of clarity in relation to this, past disabilities are considered as disability for the purpose of the Equality Act 2010 [68] and as such in cases where a discontinued treatment has reduced the effects of an impairment to that which is below the threshold to be a qualifying disability, an individual would be considered a disabled person from a past disability perspective but not from their current condition.  The nature and timing of a discriminatory act in such areas will determine if protection is available.

The Equality Act 2010 provides an exception with regard to the determination of the substantial adverse effects with its approach to visual impairments.  In this circumstance the effect of corrective lenses is not disregarded and there is a further exception in that the substantial nature of a visual impairment is determined medically by an ophthalmologist rather than through determination by the tribunal.[69] The Equality Act 2010 also contains provisions related to progressive conditions[70]. Where the effect of an impairment is not substantial but is ‘likely’ to become substantial then it is considered to have a substantial adverse effect for the purposes of the definition.

The substantial impact requirement of the Equality Act 2010 is limiting, especially when compared to the legislation in place in the Republic of Ireland[71] where there is no consideration of the substantive nature of the impact of an impairment in order for a disability to qualify for protection and it is enough only that an impairment exists[72]. The substantial effect requirement was included in the legislation in the United Kingdom to limit the ability to bring legal action so that minor impairment would not be considered.[73]  As previously mentioned there were recommendations to remove both the substantial and long-term effects from the definition of disability but these were not included in the final legislation.[74]

Long-term

The Equality Act 2010 replicates the definition of the Disability Discrimination Act 1995  in that for the effect of a disability to be long-term it must have lasted for twelve months, is likely to last for twelve months or likely to last for the rest of the life of the person affected. [75]  When considering if a condition has a long-term effect the Equality Act 2010 provides that where the substantial adverse effect ceases but is likely to reoccur the condition is assumed to be ongoing.[76] Although the long-term nature of the effects of a condition are an important factor when differentiating between a disability, temporary afflictions and transient illnesses a positive prognosis of the likelihood of reoccurrence of substantial effects can limit the protection of individuals in a number of ways.

In Cruickshank v Vaw Motorcast Ltd[77] it was provided that the timing of the assessment of whether a person was disabled or not  should be at the time of the discriminatory act and that consideration should be given to somebody’s ability to carry out normal day-to-day activities in the round where there were fluctuations in their abilities.

In the case of Swift v Chief Constable of Wiltshire Constabulary[78] the applicant suffered from a recognised psychiatric condition which manifested itself in problems with concentration and memory from February 2001 to July 2002.  Although the effect of these problems was deemed to be substantial during this period it was determined that although the applicant suffered from occasional panic attacks which created other adverse effects, these were not deemed substantial and as the original effects relating to concentration and memory had not returned a reoccurrence of the original impairment was unlikely.  The EAT seems not to have referred fully to the guidance in place at the time[79], which is replicated under the Equality Act 2010 [80], and allows for effects which are not the same when determining the longevity of an impairment. However, the Equality Act 2010 guidance[81] provides that although the effects may be different, the effects need to be of a substantial nature for the impairment to be considered long-term in line with the judgement in Swift v Chief Constable of Wiltshire Constabulary.[82]

The Court of Appeal in McDougall v Richmond Adult Community College[83] considered the long-term nature of the substantial effects of a condition and confirmed that the determination of the likelihood of the reoccurrence of the substantial effects must be made at the time of the alleged discriminatory act and not with the benefit of hindsight.  In this case the employer withdrew an offer of employment on discovering that the applicant had a history of mental health issues and although the substantial effects of the impairment did return this was deemed to have been unlikely at the time of the discriminatory act and so failed to fulfil the requirements needed to be considered long-term.[84]

The subjectivity surrounding the use of “likely” was addressed by the EAT in the case of Latchman v Reed Business Information[85] where an assessment of the likeliness of reoccurrence was made at 50 per cent.  The EAT ruled that as reoccurrence was as equally likely as not, the reoccurrence was not “likely”.  This approach was overruled by the House of Lords in SCA Packaging v Boyle[86] where “likely” was determined to mean “could well happen” rather than “more probable than not”.

Certain Conditions

As previously stated the definition of a disabled person under Section 6 of Equality Act 2010 follows a medical model of disability.  However, the Equality Act 2010 also provides that certain medical conditions are disabilities regardless of the nature of the impairment.[87]  These conditions are; cancer, HIV infection and multiple sclerosis and as the adverse nature of the effects of any impairment is not material these fall within a social model of disability.  Similarly, the Equality Act 2010 also provides that severe disfigurements are treated as falling within the definition of disability.

Under Section 6 of the Equality Act 2010 those persons who have history of a past disability which satisfies the requirements of the definition they are able to rely on the protection provided, as a reference to those who have a disability is also considered to include those who have had a disability in the past.  As with the specifically named medical conditions this falls into the social model of disability as there is no requirement for any continuing impairment.  The purpose of the inclusion of past disability is to provide protection where there could be a stigma or stereotyping associated with the disability, especially in the case of mental health.[88]

Conversely, there are specific conditions which are excluded regardless of their effect under the Equality Act 2010 (Disability) Regulations 2010[89] these are addictions to alcohol, nicotine or any other substance, other than where the addiction started as a result of the administration of medically prescribed drugs[90], tendencies to steal, start fires or abuse other persons, exhibitionism, voyeurism[91] and with regard to severe disfigurements, tattoos and non-medical decorative piercings[92].   Also, seasonal allergic rhinitis (hay fever) is not considered to be an impairment for the purposes of the definition of disability.  Although there are social acceptability considerations or elements of choice for the majority of the excluded conditions it is hard to justify the exclusion of hay fever without consideration of the substantial effect that it may have in extreme cases.

Although specific impairments may be excluded, in the case of Power v Panasonic UK ltd[93] the EAT held that the tribunal had erred in law in connecting the claimant’s depression with their alcohol consumption and that it did not matter how a disability occurred and only whether a disability existed.  Similarly in Murray v Newham Citizens Advice Bureau[94] the EAT stated that where violent behaviour was caused by an underlying condition, in this case paranoid schizophrenia, the consequence of an underlying disability did not prevent the condition falling into the definition of a disability.

[1] Anna Lawson, “Disability and Employment in the Equality Act 2010: Opportunities Seized, Lost and Generated” (2011) Industrial Law Journal 40(4) pp359-383 at pp361-363

[2] Equality Act (Disability) Regulations 2010 SI 2010/2128

[3] HM Government Office for Disability Issues, “Equality Act 2010 – Guidance: Guidance on matters to be taken into account in determining questions relating to the definition of disability.” (Office for Disability Issues, May 2011)

[4] Equality Act 2010 s.6(5)

[5] Equality Act 2010 s.6(1)

[6] Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment an occupation, Official Journal of the European Communities L303, 2 December 2000 p16-22, p18 art 1.

[7] (Case C-13/05) Chacon Navas v Eurest Colectividades SA [2007] ICR 1 (ECJ)

[8] (Case C-13/05) Chacon Navas v Eurest Colectividades SA [2007] ICR 1 (ECJ) p11

[9] (Case C-13/05) Chacon Navas v Eurest Colectividades SA [2007] ICR 1 (ECJ) p21

[10] (Case C-13/05) Chacon Navas v Eurest Colectividades SA [2007] ICR 1 (ECJ) p21

[11] Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment an occupation, Official Journal of the European Communities L303, 2 December 2000 p16-22

[12] David Hosking, “A High Bar for EU Disability Rights” (2007) Industrial Law Journal 36(2) pp228-237 at pp233-235

[13] Disabled Persons (Employment) Act 1944 s.1

[14] Disability Discrimination Act 1995 Sch.1(7)

[15] Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment an occupation, Official Journal of the European Communities L303, 2 December 2000 p16-22

[16] Directorate-General for Employment, Social Affairs and Equal Opportunities, “Disability and Non-Discrimination Law in the European Union” (European Commission, July 2009) pp18-19

[17] Directorate-General for Employment, Social Affairs and Equal Opportunities, “Disability and Non-Discrimination Law in the European Union” (European Commission, July 2009) p21

[18] Directorate-General for Employment, Social Affairs and Equal Opportunities, “Disability and Non-Discrimination Law in the European Union” (European Commission, July 2009) p21

[19]United Nations, “Convention on the Rights of Persons with Disabilities and Optional Protocol” (New York, December 2006) Available from http://www.un.org/disabilities/documents/convention/convoptprot-e.pdf accessed on 21 December 2012

[20] Joint Committee on Human Rights, Legislative Scrutiny: Equality Bill, 26th Report of Session 2008-2009, HL Paper 169, HC Paper 183 (London, The Stationary Office)

[21] Joint Committee on Human Rights, Legislative Scrutiny: Equality Bill, 26th Report of Session 2008-2009, HL Paper 169, HC Paper 183 (London, The Stationary Office) at 55

[22] Bob Hepple, Equality, the New Legal Framework, 1st Edition (Hart, 2011) pp34-35

[23] Goodwin v Patent Office [1999] ICR 302 (EAT)

[24] Simon Deakin and Gillian Morris, Labour Law, 5th Edition (Hart, 2009) p662

[25] Equality Act 2010 s.6(1)

[26]  Department of Work and Pensions, “Disability Discrimination Act, Guidance on matters to be taken into account in determining questions relating to the definition of disability” (TSO, March 2006) Available from http://www.equalityhumanrights.com/uploaded_files/guidance_on_matters_to_be_taken_into_account_in_determining_questions_relating_to_the_definition_of_disability.pdf accessed on 21 December 2012

[27] HM Government Office for Disability Issues, “Equality Act 2010 – Guidance: Guidance on matters to be taken into account in determining questions relating to the definition of disability.” (Office for Disability Issues, May 2011) pp34-47 and 53-57

[28] Ekpe v Commissioner of Police of the Metropolis [2001] ICR 1084 (EAT)

[29]  Department of Work and Pensions, “Disability Discrimination Act, Guidance on matters to be taken into account in determining questions relating to the definition of disability” (TSO, March 2006) Available from http://www.equalityhumanrights.com/uploaded_files/guidance_on_matters_to_be_taken_into_account_in_determining_questions_relating_to_the_definition_of_disability.pdf accessed on 21 December 2012

 

[30]  Department of Work and Pensions, “Disability Discrimination Act, Guidance on matters to be taken into account in determining questions relating to the definition of disability” (TSO, March 2006) Available from http://www.equalityhumanrights.com/uploaded_files/guidance_on_matters_to_be_taken_into_account_in_determining_questions_relating_to_the_definition_of_disability.pdf accessed on 21 December 2012

[31] Ekpe v Commissioner of Police of the Metropolis [2001] ICR 1084 (EAT) pp1092-1093

[32] Goodwin v Patent Office [1999] ICR 302 (EAT)

[33] Goodwin v Patent Office [1999] ICR 302 (EAT) at 309

[34] (Case C-13/05) Chacon Navas v Eurest Colectividades SA [2007] ICR 1 (ECJ) at p21

[35] Paterson v Commissioner of Police of the Metropolis [2007] ICR 1522 (EAT)

[36] Chief Constable of Lothian and Borders v Cumming [2010] IRLR 109 (EAT)

[37] Paterson v Commissioner of Police of the Metropolis [2007] ICR 1522 (EAT)

[38] (Case C-13/05) Chacon Navas v Eurest Colectividades SA [2007] ICR 1 (ECJ)

[39] Chief Constable of Lothian and Borders v Cumming [2010] IRLR 109 at para 27

[40] Disability Discrimination Act 1995 s.1(1) and Equality Act 2010 s.6(1)

[41] Disability Discrimination Act 1995 sch.1(4)

[42] Aaron Baker and Ian Smith, Smith and Wood’s Employment Law, 10th Edition (Oxford University Press, 2010) p355

[43] HM Government Office for Disability Issues, “Equality Act 2010 – Guidance: Guidance on matters to be taken into account in determining questions relating to the definition of disability.” (Office for Disability Issues, May 2011) pp8-9

[44] Goodwin v Patent Office [1999] ICR 302 (EAT)

[45] Goodwin v Patent Office [1999] ICR 302 (EAT) at 307

[46] McNicol v Balfour Beaty Rail MAintainance Ltd [2002] ICR 1498 (CA)

[47] McNicol v Balfour Beaty Rail MAintainance Ltd [2002] ICR 1498 (CA) at 17

[48] McNicol v Balfour Beaty Rail MAintainance Ltd [2002] ICR 1498 (CA)

[49] College of Rippon and York St John v Hobbs [2002] IRLR 185 (EAT) at para 31-34

[50] Millar v Inland Revenue Commissioners [2006] IRLR 112 (Ct of Sess)

[51] McNicol v Balfour Beaty Rail MAintainance Ltd [2002] ICR 1498 (CA)

[52] College of Rippon and York St John v Hobbs [2002] IRLR 185 (EAT)

[53] McNicol v Balfour Beaty Rail MAintainance Ltd [2002] ICR 1498 (CA) at 17

[54] HM Government Office for Disability Issues, “Equality Act 2010 – Guidance: Guidance on matters to be taken into account in determining questions relating to the definition of disability.” (Office for Disability Issues, May 2011) pp8-10

[55] HM Government Office for Disability Issues, “Equality Act 2010 – Guidance: Guidance on matters to be taken into account in determining questions relating to the definition of disability.” (Office for Disability Issues, May 2011)

[56] HM Government Office for Disability Issues, “Equality Act 2010 – Guidance: Guidance on matters to be taken into account in determining questions relating to the definition of disability.” (Office for Disability Issues, May 2011) p14 para.B1

[57] Simon Deakin and Gillian Morris, Labour Law, 5th Edition (Hart, 2009) p663

[58] Goodwin v Patent Office [1999] ICR 302 (EAT)

[59] Leonard v Southern Derbyshire Chamber of Commerce [2001] IRLR 19 (EAT)

[60] Goodwin v Patent Office [1999] ICR 302 (EAT)

[61]  Department of Work and Pensions, “Disability Discrimination Act, Guidance on matters to be taken into account in determining questions relating to the definition of disability” (TSO, March 2006) Available from http://www.equalityhumanrights.com/uploaded_files/guidance_on_matters_to_be_taken_into_account_in_determining_questions_relating_to_the_definition_of_disability.pdf accessed on 21 December 2012 p9 para. B1

[62] Goodwin v Patent Office [1999] ICR 302 (EAT) at 310

[63] Equality Act 2010 Sch. 1 Para. 5

[64] Boyle v SCA Packaging Ltd (Equality and Human Rights Commission Intervening) [2009] ICR 1056 (HL(NI))

[65] Carden v Pickerings Europe [2005] IRLR 720 (EAT)

[66] Kapadia v Lambeth LBC [2000] IRLR 14 (EAT)

[67] Abadeh v BT [2001] ICR 156 (EAT)

[68] The Equality Act 2010 s.6(4)

[69] Equality Act 2010 Sch. 1 Para. 5(3)

[70] Equality Act 2010 Sch. 1 Para. 8

[71] Employment Equality Act 1998-2004 s.2(1)

[72] Directorate-General for Employment, Social Affairs and Equal Opportunities, “Disability and Non-Discrimination Law in the European Union” (European Commission, July 2009) p21

[73] Brian Doyle, Disability Discrimination, Law and Practice, 3rd Edition (Jordans, 2000) at pp15-17

[74] Anna Lawson, “Disability and Employment in the Equality Act 2010: Opportunities Seized, Lost and Generated” (2011) Industrial Law Journal 40(4) pp359-383 at pp361-363 at pp362-363

[75] Disability Discrimination Act 1995 sch.1 2(1) and Equality Act 2010 sch.1 2(1)

[76] Equality Act 2010 sch.1 2(2)

[77] Cruickshank v Vaw Motorcast Ltd [2002] IRLR 24 (EAT)

[78] Swift v Chief Constable of Wiltshire Constabulary [2004] ICR 909 (EAT)

[79]  Department of Work and Pensions, “Disability Discrimination Act, Guidance on matters to be taken into account in determining questions relating to the definition of disability” (TSO, March 2006) Available from http://www.equalityhumanrights.com/uploaded_files/guidance_on_matters_to_be_taken_into_account_in_determining_questions_relating_to_the_definition_of_disability.pdf accessed on 21 December 2012 C6 pp18-19

[80] Office for Disability Issues, “Equality Act 2010 – Guidance: Guidance on matters to be taken into account in determining questions relating to the definition of disability.” (Office for Disability Issues, May 2011) Available from http://odi.dwp.gov.uk/docs/wor/new/ea-guide.pdf accessed on 21 December 2012 C7 at p31

[81] Office for Disability Issues, “Equality Act 2010 – Guidance: Guidance on matters to be taken into account in determining questions relating to the definition of disability.” (Office for Disability Issues, May 2011) Available from http://odi.dwp.gov.uk/docs/wor/new/ea-guide.pdf accessed on 21 December 2012

[82] Swift v Chief Constable of Wiltshire Constabulary [2004] ICR 909 (EAT)

[83] McDougall v Richmond Adult Community College [2008] ICR 431 (CA)

[84] James Petts, “Prognosis for Disability Discrimination Following McDougall” (2008) Industrial Law Journal 37(3) pp268-278 at pp271-272

[85] Latchman v Reed Business Information Ltd [2002] ICR 1453 (EAT)

[86] Boyle v SCA Packaging Ltd (Equality and Human Rights Commission Intervening) [2009] ICR 1056 (HL(NI))

[87] Equality Act 2010 Sch. 1 Para. 6

[88] Michael Connolly, Discrimination Law, 2nd Edition (Sweet and Maxwell, 2011) p405

[89] Equality Act 2010 (Disability) Regulations 2010 SI 2010/2128

[90] Equality Act 2010 (Disability) Regulations 2010 SI 2010/2128 s.3

[91] Equality Act 2010 (Disability) Regulations 2010 SI 2010/2128 s.4

[92] Equality Act 2010 (Disability) Regulations 2010 SI 2010/2128 s.5

[93] Power v Panasonic UK Ltd [2003] IRLR 151 (EAT)

[94] Murray v Newham Citizens Advice Bureau [2003] IRLR 643 (EAT)

The opinion given in this article is for general information only and is intended to illustrate and highlight themes which may affect employers and their employees. It should not be taken as specific advice on any situation or the appropriate course of action for any particular company or employer. Should you wish to discuss a similar situation or any other matter please contact Ascent HR Limited. ©Ascent HR Limited.

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