Implications for Occupational Health
Advising on disability:
One of the important roles of Occupational Health (OH) is to offer an opinion to employers as to whether their workers may fulfil the criteria of disability as defined by the Equality Act. This is not a medical definition but a legal one and therefore the ultimate decision will lie with the Courts. However, a medical professional should be in a position to offer an opinion in line with the legal definition of disability as defined in Section 6 of the Act, “P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities”.
The difficulty is based around the definitions of substantial and long-term and what constitutes normal day-to-day activities.
Substantial
Substantial is defined under Section 212 of the Equality Act which states, “more than minor or trivial”.
The Aderemi v London South Eastern Railway Limited (2012) case refers to the situation of Aderemi who was dismissed on the grounds of capability to do his station attendant role which included standing or bending. The Employment Tribunal (ET) initially felt that he was not dismissed unfairly and that he was not considered to have a disability. At an upheld appeal, the Employment Appeal Tribunal (EAT) criticised the ET for focussing on what he could do rather than what he could not do, which included standing for prolonged periods of time. Furthermore, the EAT went on to say that a tribunal “may only operate to ask whether a matter can be regarded as trivial or insubstantial: if not, it will be substantial if it is of effect upon normal day-to-day activities”.
Long-term
Schedule 1 of the Equality Act also defines for us long-term:
1) The effect of an impairment is long-term if-
a) it has lasted for at least 12 months.
b) it is likely to last for at least 12 months, or
c) it is likely to last for the rest of the life of the person affected.
2) If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.
There are two points to note under this section:
Firstly, the Nissa v Waverley Education Foundation Ltd (2018) case further highlights the importance of looking at conditions which are likely to last for at least 12 months. Nissa was dismissed from her role within the 12 month period of time for symptoms relating to a diagnosis of fibromyalgia which not only had given her symptoms affecting her ability to carry out normal day-to-day activities for some time before her diagnosis, but also “could well happen” and likely to last for at least 12 months. The Employment Appeal Tribunal upheld the appeal.
Secondly, another important consideration for OH professionals to consider when giving an opinion regarding disability for the purposes of the Act, are the contents of subsection 2 above. This highlights the importance for thought to be given to ability of certain medical conditions to have intermittent substantial adverse effects on a person’s ability to carry out normal day-to-day activities.
Day-to-day activities
The older Disability Discrimination Act list of activities is no longer applies. Guidance should now look at what a person cannot do or can only do with difficulty. The Office for Disability Issues (ODI) offer an illustrative, long but non-exhaustive list of possibilities including those relating to work in their publication Equality Act 2010 Guidance.
The Banaszczyk v Booker (2016) case also highlights the importance of what is determined to be a normal day-to-day activity. In this case, an employee was dismissed for failing to meet a pick rate because of a back problem. Following an unsuccessful ET for disability discrimination (where Banaszczyk was found not to have a disability), an EAT found serious flaws in the conclusions drawn and specifically focussed on the fact “picking rate” is not an activity of daily living but lifting and moving 25kg bags is. This conclusion was made on the basis that there are many jobs involving such activities. Therefore, Banaszczyk was at a significant disadvantage in the light of such a disability for which no reasonable adjustments had been offered.
Medical Treatment
Under Schedule 1 of the Act, the effects of medical treatment must also be considered:
1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if-
a) measures are being taken to treat or correct it, and
b) but for that, it would be likely to have that effect.
2) “Measures” includes, in particular, medical treatment and the use of a prosthesis or other aid.
A medical opinion should therefore consider not just how a person is found, rather what they might be like if they were not receiving medical treatment.
Automatic disabilities
Also, under Schedule 1 of the Act, there are automatic disabilities including cancer, HIV infection and multiple sclerosis. Consideration also need to be given to “progressive conditions” which have the ability to cause a substantial adverse effect on activities of daily living (e.g. Parkinson’s Disease, Motor Neurone Disease or some forms of dementia).
Commenting on disability in reports
Another important consideration around OH offering an opinion as to whether an employee is covered by the Equality Act is to refrain from commenting is or is not covered and using terminology such as likely or not likely an employee may be covered by equality legislation and giving reasons for that opinion based upon the criteria discussed so far.
This is elaborated further by the Gallop v Newport City Council (2013) case whereby the conclusion of an EAT was:
“That assistance and guidance [given by occupational health or other medical advisers] may be to the effect that the employee is a disabled person; and, unless the employer has good reason to disagree with the basis of such advice, he will ordinarily respect it in his dealings with the employee. In other cases, the guidance may be that the opinion of the adviser is that the employee is not a disabled person. In such cases, the employer must not forget that it is still he, the employer, who has to make the factual judgment as to whether the employee is or is not disabled: he cannot simply rubber stamp the adviser's opinion that he is not.”