Establishing Disability Under the Equality Act

July 26, 2013

Establishing Disability Under the Equality Act

A person is disabled for the purposes of the Equality Act 2010 if he or she has an impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. If an impairment ceases to have that effect, it is to be treated as continuing to do so if the effect is likely to recur.

In Sussex Partnership NHS Foundation Trust v Norris, the Employment Appeal Tribunal (EAT) held that the fact that the claimant had a life-long condition, controlled by medication, that rendered her more prone to developing infections of the upper respiratory tract, and which had once left her unable to function fully on a day-to-day basis for a three- to four-month period, was not sufficient evidence of a disability for the purposes of the Act.

Ms Norris had been diagnosed with Selective IgA, a defect of the immune system, in 1997. She brought a claim of disability discrimination after a job offer that had been made to her was withdrawn. Sussex Partnership NHS Foundation Trust agreed that Ms Norris has a physical impairment but denied that she is a disabled person within the meaning of the Act.

The Employment Tribunal (ET) heard that Ms Norris had occasional periods of sickness absence, including one between July/August 2007 and November 2007 when she was unable to carry out day-to-day tasks. A report from an expert in clinical immunology clarified that Selective IgA deficiency does not itself have any effect on a person’s capacity to function but does render sufferers susceptible to recurrent infections. Ms Norris had been prescribed medication to help prevent chest infections.

The ET held, by a majority, that Ms Norris was disabled for the purposes of the Equality Act. Selective IgA made her more prone to infections, so there was a cause and effect relationship between her impairment and the infections. If her medication were disregarded, she was more susceptible to infections which could result in a substantial adverse effect on her ability to carry out day-to-day activities, such as getting to work, shopping, housekeeping and walking. Whilst finding that Ms Norris’s impairment was not long term, the ET held that the substantial adverse effect could well recur. The Employment Judge disagreed with the majority, however. In his view, Ms Norris had failed to demonstrate that her infections did have a substantial adverse effect on her ability to carry out normal day-to-day activities during the relevant period or that the effect was likely to recur.

The ET’s decision was overturned on appeal. Ms Norris had not produced evidence to establish that increased susceptibility to infection would necessarily have a substantial adverse effect on her ability to carry out normal day-to-day activities. Whilst accepting that the Equality Act does not require a direct causal link between the impairment and the substantial and long-term adverse effect, there was only one period during which Ms Norris had suffered a prolonged, persistent infection that had affected her ability to carry out normal day-to-day activities. Furthermore, even though IgA is a life-long condition, there was insufficient evidence to support a conclusion that it could well happen that the substantial adverse effects associated with her impairment could recur.

The decision of the ET was therefore set aside and the issue of whether or not Ms Norris was, at the material time, a disabled person within the meaning of the Act was remitted for re-hearing before a differently constituted ET.