What is considered a disability?
By law, employers have a duty to make reasonable adjustments to any elements of the job which place a disabled person at a substantial disadvantage compared to non-disabled people. But, what is the definition of a disability in relation to the Equality Act 2010 (the Act)?
Section 6 of the Act concerns the definition of a disabled person. Further guidance, including illustrative examples, has been provided to help adjudicating bodies determine who would be classed as being disabled.
For the purpose of the Act, a disabled person is someone who has a physical or mental impairment and the adverse effect of the impairment on their ability to carry out normal day-to-day activities is substantial and long-term.
That is to say, according to the Act, for a person to be considered disabled, the following 4 things are true:
They have a physical or mental impairment
Their ability to carry out normal daily activities is affected by the impairment
The impact on normal daily activities is substantial
The impairment has, or will, last 12 months or longer, or recur
What is considered an impairment?
There is no long-list of conditions that are considered an impairment for the purposes of the Act. As stated in the guidance, “Any attempt to do so [to provide an exhaustive list of conditions] would inevitably become out of date as medical knowledge advanced”. The guidance does provide some examples, including:
sensory impairments, such as those affecting sight or hearing;
impairments with fluctuating or recurring effects such as rheumatoid arthritis, myalgic encephalitis (ME), chronic fatigue syndrome (CFS), fibromyalgia, depression and epilepsy;
progressive impairments, such as motor neurone disease, muscular dystrophy, and forms of dementia;
auto-immune conditions such as systemic lupus erythematosis (SLE);
organ specific impairments, including respiratory conditions, such as asthma, and cardiovascular diseases, including thrombosis, stroke and heart disease;
developmental impairments, such as autistic spectrum conditions (ASC), dyslexia and dyspraxia;
mental health conditions with symptoms such as anxiety, low mood, panic attacks, phobias, or unshared perceptions; eating disorders; bipolar affective disorders; obsessive compulsive disorders; personality disorders; post traumatic stress disorder, and some self-harming behaviour;
mental illnesses, such as depression and schizophrenia;
impairments produced by injury to the body, including to the brain.
As is clear from the examples above, not all impairments and health conditions are visible.
The cause of an impairment is not important. Liver disease or depression are considered impairments, even where they are as a result of alcohol dependency, despite an addiction to alcohol being expressly excluded from the definition of a disability within the Act.
There are a number of impairments where the individual is considered to be disabled from the moment of diagnosis, these include, cancer, HIV and multiple sclerosis (MS).
Additionally, people with a progressive condition that may become more severe over time, such as dementia, motor neurone disease or muscular dystrophy, are protected as a disabled person within the Act.
A person with a severe disfigurement is also considered to be disabled, including people with scars, birthmarks, or diseases of the skin.
The Business Disability Forum advises employers not to debate too closely whether an employee is disabled but rather to focus on whether and what reasonable adjustments may be required to enable them to do their job.
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