The Equality Act 2010 (the “Act”) prohibits discrimination in employment in respect of a number of ‘protected characteristics’ including disability. Before an employee can complain that they have suffered discrimination because of disability, they must be able to show that they were disabled at the relevant time. The claimant will be deemed to have a disability if the following four points are covered:
- the claimant has a physical or mental impairment;
- the impairment has an adverse effect on the claimant’s ability to carry out normal day to day activities;
- the effect is substantial; and
- the effect is long term.
Difference where the employee suffers from a progressive condition
Many medical conditions are progressive, advancing in scope and severity over time, such as cancer, multiple sclerosis or HIV. This can cause problems for claimants who suffer discrimination because of their disability even though the disability is having little or no effect on them at the time of suffering discrimination (e.g. an employee is diagnosed with HIV and is immediately dismissed because the employer is concerned about the stigma attached to it, even though the employee is suffering no obvious consequences from the virus). However, the Act protects such employees: where the condition is progressive, the claimant’s ability to carry out normal day to day activities is deemed to be substantially adversely affected even if the effect was minor or non-existent at the relevant time.
What is a progressive condition?
In most cases it is unlikely to be disputed, for example, where the claimant suffers from cancer, multiple sclerosis, muscular dystrophy or is infected with HIV. A person suffering from one of these illnesses will be deemed to be disabled from the point of diagnosis. If it is contested whether the claimant has a different progressive condition, expert evidence may be necessary and a preliminary hearing may be appropriate to determine the issue.
Where the claimant does suffer from a progressive condition, they will be deemed to have an impairment with a substantial adverse effect on their normal day to day activities before it actually has that effect if they can show that:
- as a result of the condition, they have an impairment which has, or had, some effect on their ability to carry out normal day to day activities; and
- the condition is likely to result in an impairment having a substantial adverse effect.
Case law tells us that the impairment will be the ‘result’ of a condition if it “followed in the ordinary course of events from the disease” (Kirton v Tetrosyl (2003)).
What constitutes being ‘likely’ for the purposes of the second limb of the test has changed relatively recently, making it an easier hurdle for the claimant to satisfy. Under the previous legislation (the Disability Discrimination Act 1995), guidance suggested that “it is likely than an event will happen if it is more probable than not that it will happen”. However, the guidance to the Act now provides that the meaning of ‘likely’ is something that “could well happen”, which is in line with the definition provided in the 2009 House of Lords case, SCA Packaging Ltd v Boyle. As a result of this new interpretation, it will be easier for individuals to establish that they are entitled to protection under the Act. Employers should take seriously any health related concern raised by an employee regardless of how ‘disabled’ the employee might appear.
The timing at which the ‘likelihood’ should be assessed is the date that the act of discrimination took place (McDougall v Richmond Adult Communication College (2008)). A substantial effect will be one that is more than a minor or trivial effect, this appears to be a low hurdle to clear and is unlikely to be a contentious issue.
In a disability discrimination claim relating to a progressive illness, the most contested area of dispute has been the interpretation of whether, at the time the discrimination took place, the condition is ‘likely’ to result in an impairment having a substantial adverse effect on the claimant’s ability to carry out normal day to day activities. Whether something is likely to occur, is whether that something ‘could well happen’, an interpretation which has lowered the barrier from the perspective of the employee.
A pre-hearing review can be a useful tactic for employers to adopt where there is uncertainty over whether a claimant has a progressive illness. For example, Fox Williams recently acted successfully for an employer in defending a disability discrimination claim where the employee argued that he had a progressive condition because he had been diagnosed with the Hepatitis C virus when he was dismissed. The Respondent had the claim struck out at a pre-hearing review because the tribunal was persuaded that the condition was not, in fact, progressive: there was a lack of evidence that the virus was likely to have a substantial adverse effect on the employee’s ability to carry out normal day to day activities at the point of dismissal.