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When should a condition be classified as a disability?
DAS Law Senior Associate and Legal Executive Tessa Faverty considers this crucial question, drawing on her professional expertise, and personal experience.
Through this article I’ll share my insights into how to determine whether those suffering a medical condition need to be treated as a disabled person under the Equality Act 2010, and what that means in the workplace.
This topic is of particular relevance to me, because as well as being an employment lawyer I suffer from Sjögren’s Syndrome (SS), an autoimmune condition which affects the glands that produce saliva and tears, and can also affect joints. Estimated to affect 0.6% of adults in the UK, the most common symptoms of SS are a dry mouth and eyes, but can also include joint pain and fatigue.
The thing is, whilst some people suffering SS may not have symptoms that have a significant impact on their normal work day, each person is affected differently and for others it can have a big impact on their everyday life. But is it a ‘disability’?
Qualifying as a disabled person within the meaning of the Equality Act 2010
When most people think of what a disabled person is, many seem to use the highly scientific test; ‘would they qualify for a parking space?’ In case there was any need to clarify, it’s a little bit more complex than that.
In employment law, in order to be considered a disabled person for the purposes of pursuing a disability discrimination claim in an employment tribunal, you need to satisfy the definition under the Equality Act 2010. To break this down, you need to:
Suffer from a physical or mental impairment for at least 12 months, or that the condition is likely to last more than 12 months. So in my case sadly for us SS sufferers this is a condition that is not yet curable and as such is without doubt going to last more than 12 months; and
The condition has to have a substantial and adverse effect on your normal day to day activities. This last part of the test is usually the hurdle that many conditions cannot overcome, and in fact some SS sufferers may not, as their symptoms may be less substantial.
In practical terms, I advise clients to breakdown the symptoms and consider what would happen if they, or their member of staff did not take medication to manage that symptom? Would it make anything impossible to do, or more difficult? Is there pain? And what does that mean in terms of day to day living and how are your business and personal relationships affected?
If in listing these effects you find that there are a number of day to day activities significantly hindered by the condition, you are more likely than not to be a disabled person under the Equality Act 2010.
Does your employer know you suffer from SS?
Regardless of whether the definition of a disabled person under the 2010 Act is satisfied, I always advise that an employee should make their employer aware of any underlying medical condition. The more the employer knows, the more likely they will be more understanding when considering requests for time off for appointments, or adjustments in the workplace.
It should be noted that the right to adjustments and to more leniency will only arise if an employee can not only satisfy the tribunal that they are a disabled person, but that the employer knows or ought reasonably to have known about it.
It is therefore important that an employer is supplied with details of any condition as soon as it comes to light – or if pre-existing, at the commencement of employment. This should be evidenced in writing, recording the condition and ideally what impact it may have in the workplace.
Prudent, reasonable employers will then wish to not only ensure an employee is able to manage the condition in the workplace but also to understand to best protect their position from possible disability discrimination claims.
From an employee perspective, if you are aware of adjustments you need in the workplace to assist you - in my case, with managing my SS – you need to be asking your employer for these as soon as possible.
And don’t be surprised if there is some pushback on this; in the case of many conditions it may be that not many people know about them, and an employer is within their rights to ask for more information. This information could take the form of an occupational health referral or a letter from a treating consultant.
In general terms, whilst a medical condition is a private matter, my advice is the more information an employee can give an employer the more the latter will be informed and better placed to assist in managing a condition in the workplace, and that will be beneficial for both parties.
It is important to note that an employer has a duty to ensure that reasonable adjustments are put in place to avoid any disadvantage to the disabled employee.
However, not all adjustments are reasonable and any tribunal will take into account whether the adjustment asked for is proportionate in the circumstances of the business, including the cost, resources and any other disruption to the day to day running of the business.
In my case, one of the key adjustments that an SS sufferer will most certainly need from their employer is flexibility to attend medical appointments. Ideally these will be arranged for first thing in the morning or late in the afternoon so that that there is less disruption during the day to the running of the business.
A disabled person has enhanced rights in a tribunal to bring a claim for disability discrimination so it is important that an employer is notified as soon as possible of any condition, and the impact that it has.
A common type of claim we see as employment lawyers is a failure to make reasonable adjustments. Whilst your employer needs to consider adjustments in the workplace, my own Sjögren’s Syndrome perspective gives a really good example of a little known condition, and how important it is in such cases to give your employer a hand with setting out what adjustments could help you manage your condition.
As an employee, the key is to be open and communicate with your employer; be willing to attend occupational health and share information where possible. The more your employer knows, the more you will be supported. And as I’ve mentioned, ultimately this is mutually beneficial.
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