Disability

by Kate Russell

Progressive conditions

A person who has a progressive condition will be treated as having an impairment which has a substantial adverse effect from the moment any impairment resulting from that condition first has some adverse effect on his ability to carry out normal day-to-day activities, provided that in the future the adverse effect is more likely than not to become substantial. Medical prognosis of the likely impact of the condition will be the normal route to establishing protection under this provision. The effect need not be continuous and need not be substantial. The person will still need to show that the impairment meets the requirements of ‘long-term’.

Certain conditions will be deemed to be disabilities from the date of diagnosis, even if there is no substantial effect. These include cancer, multiple sclerosis or HIV.

A person with a progressive condition which has no effect on day-to-day activities because it is successfully treated (for example, by surgery) may still have a disability where the effects of that treatment give rise to a further impairment which does have an effect on normal day-to-day activities. For example, treatment for the condition may result in an impairment which has some effect on normal day-to-day activities and the effects of that impairment are likely to become substantial in the future.

When initially diagnosed, many progressive conditions can be managed without being considered to have a substantial and long-term adverse effect on the individual¬ís normal day-to-day activities. It might seem that if the condition could not be considered as having a substantial and long-term adverse effect on an individual’s day-to-day life it could not be considered a disability under the provisions of the EqA. However, when determining whether an employee is disabled, you have to consider whether the condition will have a substantial effect on individual¬ís day to day life.

Example

Mr Taylor, who suffered from type two diabetes, was dismissed by his employer for alleged incapacity or misconduct in November 2013. Following this, he alleged both unlawful disability discrimination and unlawful dismissal. The employment tribunal found that Mr Taylor, was not considered to be disabled under the EqA. The court found that Mr Taylor’s diagnosis was fairly recent and at the time, a medical expert deemed that even in the absence of his medication, Mr Taylor’s condition would not have an adverse effect on his ability to carry out day-to-day activities. The tribunal concluded that Mr Taylor’s condition at the time would not satisfy the definition of disability under the Act.

Mr Taylor appealed. Allowing the appeal, the Employment Appeal Tribunal held that the test under the Act had been misapplied. The test that should have been applied to determine whether or not Mr Taylor would be considered disabled, was whether the condition was likely to result in an impairment. Owing to the progressive nature of type two diabetes, it could have been deemed to amount to a disability. Despite that at the material time the condition was not understood to have a substantial effect on Mr Taylor, the position was that as long as the condition was likely to have such a result, it would be considered a disability.