Do you know what the word “disability” really means in the workplace?
For a start, let’s dispel a myth. A person doesn’t have to be “registered” to be disabled. The concept of registration was introduced by the National Assistance Act of 1948 , and made appearances in social security legislation in the years that followed, but was already antiquated by the time of the Disability Discrimination Act in 1995 .
The definition of a “disability” (which doesn’t require registration of any description) is now to be found in the Equality Act 2010 and is as follows: “a physical or mental impairment which has a substantial and long-term adverse effect on an individual’s ability to carry out normal day-to-day activities”.
A quick glance at the definition will show that there are a number of discrete elements such as “physical”, “mental”, “substantial”, and so on. Today we’re looking at the longer phrase “adverse effect on an individual’s ability to carry out normal day-to-day activities.”
What does the phrase mean?
The point came up in Aderemi v London & South East Railway. Mr A checked passengers’ tickets at a railway station barrier. Mr A could be on his feet for up to 9 hours at a time. He developed a back problem which stopped him doing his job and was dismissed on the grounds of “capability”.
The Employment Tribunal found he wasn’t disabled at all – and pointed to a list of all the things he could do such as walk around, carry a tray, wash up, put shoes on, make complicated origami objects . . . . OK, I made the last one up, but can you spot a trend here? I’m sure that if the Tribunal had sat for a week they’d still have been adding to the list all the things which Mr A was in theory capable of doing.
Mr A appealed to the Employment Appeals Tribunal (EAT). The EAT was quick to say that what the Tribunal should have done was to look at those things which, because of his back problem, Mr A could not do. As the Tribunal had not considered evidence from that perspective the case was “remitted for a re-hearing” – which is employment law-speak for “Try again! And this time do it properly!”
So finally some questions:
- Do you think you have a disability?
- Do you think you have been unfairly treated in the workplace because of a characteristic of your disability?
- Did you know that the protection of the legislation extends to workplace discrimination against individuals having responsibility for the care of another who has a disability (so-called “associative discrimination”)?
If you think you been badly treated in the workplace because of a physical or mental impairment, you need to take expert legal advice on your rights as you could have a claim for discrimination.