When an employer is confronted with a disability discrimination claim, there are several practical considerations to keep in mind. One of the first and most crucial steps is determining whether the employee meets the legal definition of disablility under the Equality Act 2010. In this blog, we explore how employers can approach this issue and avoid pitfalls during the tribunal process.

Determining disability status 

The starting point for any disability discrimination claim is for the Claimant to prove that they are a disabled person within the meaning of the Equality Act 2010. Employers must decide at an early stage of a claim whether to concede the employee is disabled or not.

The legal definition of disability

Under Section 6(1) of the Equality Act 2010, a Claimant is considered to have a disability if they meet the following criteria:

– They have a physical or mental impairment and

– The impairment has a ‘substantial’ and ‘long-term’ adverse effect on their ability to carry out normal day-to-day activities.

Whilst this sounds complex, case law has established that this is actually quite a low threshold for the Claimant to satisfy. Commentary from numerous Employment Judges has criticised employers (Respondents) for being too slow to concede disability status, noting that ‘we haven’t seen the medical evidence’ is not a satisfactory excuse for an employer.

When to concede disability status

It is a fair point. In some cases, it is obvious the Claimant will satisfy the definition of disability. In such situations, delaying the inevitable can risk racking up more costs for the Respondent as they would need to respond to a disability impact statement, review medical records, and attend a preliminary hearing to have the issue determined.

However, there are instances where it will not be appropriate to concede disability immediately, and each case will need to be considered on its facts and medical evidence. 

Case example: Royal Bank of Scotland PLC v Morris (2012)

In the Royal Bank of Scotland PLC V Morris 2012 CLY 1122 EAT, Judge Underhill stated the importance of medical evidence for a Tribunal to draw safe inferences on whether the essential conditions of Section 6(1) are satisfied.

I recently acted for a Respondent in an employment tribunal claim. The Claimant, who had been off sick for a significant amount of time, had been referred to occupational health who could not suggest adjustments or a return to work date and could not align his symptoms with his alleged undiagnosed impairment. The Claimant was dismissed for capability and brought a tribunal claim alleging disability discrimination. However, once the medical records were disclosed as part of the tribunal claim, a different picture emerged. The records revealed inconsistencies in the Claimant’s account, making it unreasonable to concede disability status and a preliminary hearing was set to determine whether the Claimant was disabled.  

Outcome: The judge ruled in favour of the Respondent, finding that the Claimant was not disabled.

Key takeaways from the case

• Medical evidence was pivotal in substantiating the Claimant’s disability. In this case, the Claimant relied on medical notes to establish his impairments and their effects. However, the tribunal found inconsistencies and gaps in the medical records, with records of missed appointments and self-discharges from the hospital, which undermined the credibility of their evidence.

• No clear diagnosis: The absence of a definitive medical diagnosis at the relevant time further weakened the Claimant’s case.

• Credibility matters: The GP noted that the Claimants account was disjointed and unclear, casting further doubt on their evidence.

• Psychological factors: The judgment noted that the Claimant’s symptoms were attributed to a potential functional overlay – suggesting that a psychological or psychosocial factors, or even a possible exaggeration, could be influencing their condition rather than the impairment stated by the Claimant.

The balancing act of disputing claims

Challenging a Claimant’s account of their impairment or disability status requires a careful and balanced approach. Employers must consider the legislation, case law, and the individual circumstances of the case. Failing to concede disability status promptly can risk upsetting an Employment Judge and lead to unnecessary costs and wasted time if you resist conceding until the last minute. However, in some situations,  it may be necessary to withhold a decision on conceding disability at an early stage until medical evidence has been disclosed and properly reviewed.