A person is protected from disability discrimination if they meet the definition of disability.

A person MUST meet the definition to benefit from protection – this should always be the starting point if you’re looking at whether someone with a disability has been discriminated against.

The definition here is only for purposes of the Equality Act 2010 – there are other definitions in different legislation – e.g. with regard to eligibility for benefits.

It’s an entirely personal definition so it is not dependent on being part of a group

Disability is defined as a

“physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.”

It’s a broad definition so it covers a lot of different situations.

Bear in mind that this covers people who might not consider themselves to be disabled.

Main elements

It’s important to look at each element of the definition because, in a lot of cases, there will be a dispute about whether the person is disabled or not.

Physical or mental impairment – there’s no definition of this. Fairly obvious what this means.

Looking at the effect of the impairment. The effect must be:

Substantial which means more than minor or trivial. This is not a high threshold test.

Long-term means has lasted for at least 12 months or is likely to last for longer than 12 months. It can also include 2 different conditions for example the second condition is a result of the first and they last for 6 months each.

The long term substantial adverse effects must be effects on someone’s ability to do day-to-day activities There is lots of case law on what constitutes normal day to day activity. It is not a definitive list.

e.g. Glass v Promotion Line Ltd [2013] EqLR 859- applying cream to severe eczema which takes an hour to sink in impacts on normal day to day activity of leaving the house

Normal day to day activity.

• Reading and writing
• Getting washed or dressed
• Preparing and eating food
• Household tasks
• Walking, travelling, using transport
• Work-related activities
• Education-related activities

Work-related activities can count if they are things that you’d do in normal life e.g. a nurse making beds would be covered because making a bed is part of normal life

Specific considerations

If someone has a recurring or fluctuating condition they are likely to be protected because the substantial effect is considered to be continuing and long term if it is likely to recur sporadically or for short-periods. There has to be evidence that it could happen or has happened.

If someone has a physical or mental impairment and because of corrective treatment or measures there is no substantial adverse effect on their ability to carry out normal day to day activities they are likely to be protected because what is important is what would happen if they didn’t have treatment e.g what would happen if they didn’t have a pacemaker or didn’t take their medication. This can be difficult to predict and doctors tend to be wary of making predictions like this

What about someone who is diabetic for example who hasn’t taken their insulin? What would the effect be if they had NOT taken their insulin?

However, this does not apply to visual impairments that can be treated with glasses or contact lenses

If someone has a progressive condition they might not at the point of diagnosis meet the definition of disability. However as soon as any impairment has some adverse effect and it is likely that the effect will become substantial they will be protected.

This covers people who have certain types of dementia or Motor Neuron Disease. So even if the impact is low in the early stages, it will be covered if it can be shown that it will become more substantial. You are covered from the beginning even if the effect is minimal at the start.

If someone has a severe disfigurement this will be taken to have a substantial adverse effect on normal day-to-day activities.

Deemed disability

Some conditions have been identified as disabilities for the purpose of the EA 2010. Therefore, there is no need to show that they meet the definition.

• HIV infection, cancer or MS
• Certified as blind, severely sight impaired, sight impaired or partially sighted
• A past disability

A past disability must have lasted for 12 months or more. You are then protected forever. This provision was created to allow for mental health conditions for example if someone has an episode of depression some time ago, they could still be discriminated against.

Specifically excluded

In addition, there are certain conditions that have been deemed not to be disabilities for the purpose of the EA 2010

Substance/ alcohol addiction – but you ARE protected if the addiction is a consequence of substance being medically prescribed.

You are also protected if you develop a disability as a result of this addiction. For example an alcoholic would not be deemed to be disabled because of their alcoholism. But if they developed depression or liver disease as a result, this could be protected as a disability.

Hayfever

Tendency to set fires, steal, physical or sexual abuse – some of these are recognised mental health conditions but have been excluded from protection, essentially, for policy reasons.

Tendency to physical violence – this is a difficult area for conditions like ADHD which can lead to physical violence. Recent cases in tribunals have said that this refers to a STANDALONE tendency to physical violence. So this means that kids are protected if a tendency to physical violence is part of their disability.

Exhibitionism

Voyeurism

Disfigurements caused by a tattoo or non-medical body piercing

Guidance

It is unsurprising given the range of situations that the Acty is intended to cover that determining whether someone has a disability can become quite complicated, however there is  a Guidance document available, Equality Act 2010:  Guidance on matters to be taken into account in determining questions relating to the definition of disability