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Determining Disability Status: Is Extra-Statutory Guidance Relevant?

BY Zoe Kerr
Employment Law & HR

In Elliott v Dorset County Council UKEAT/0197/20, the Employment Appeal Tribunal (EAT) held that, when determining whether a person falls within the definition of disabled under the Equality Act 2010, precedence should be given to the statutory definition of “substantial”, rather than the supplementary guidance provided by the Equality Act Guidance and EHRC Code.

The Law and Extra-Statutory Guidance

Section 6 of the Equality Act 2010 provides that: "A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”. The meaning of the word “substantial” is further explained within the Act as meaning “more than minor or trivial”.

To assist in interpreting the provisions within the Equality Act, there are currently two sources of extra-statutory guidance: The Equality Act 2010: Guidance on matters to be taken into account in determining questions relating to the definition of disability; and the EHRC Employment Statutory Code of Practice.


The EAT’s Judgment in Elliott v Dorset County Council

In Elliott v Dorset County, the Employment Tribunal concluded that the Claimant was not disabled within the meaning of the Equality Act 2010. However, the EAT allowed an appeal against this finding, stating that the Tribunal had failed to adopt the correct approach when determining whether the impairment had a substantial effect on the employee’s ability to carry out normal day-to-day activities.

Whilst the EAT recognised the great assistance the supplementary guidance offers, the judgment emphasised that the Tribunal is only required to “take account of them” if it is relevant. However, the EAT highlighted, that if the statutory provision of "substantial" meaning "more than minor or trivial" provides a simple answer, then it is erroneous to find additional complexity by considering the Code or Guidance.

This decision tells us that, when determining whether an individual has a disability for the purposes of the Equality Act 2010, the statutory definition will prevail. A Tribunal should only consider the extra-statutory guidance where the statutory definition fails to provide a conclusive answer.

If the statutory definition does not provide a straightforward answer, when applying the extra-statutory guidance that "substantial" means that an impairment has a greater effect than the "normal differences in ability which might exist among people", you cannot compare the Claimant to the general population. Instead, you should compare the Claimant to those that are broadly similar to the Claimant had they not had the disability.

Similarly, the EAT outlined that when assessing whether an impairment has a “substantial” adverse effect, an Employment Judge must consider what a person cannot do, or can do with difficulty, as opposed to what the person can do.

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