Under the DDA (i.e. the law prior to Equality Act 2010) the Employment Appeal Tribunal considered it permissible to find that an impairment did not have a ‘substantial’ effect if the effect was more than ‘trivial’ but not more than ‘minor’.
Employment Appeal Tribunal, July 2010. Full decision: www.bailii.org/uk/cases/UKEAT/2010/0091_10_2307.html
The claimant had a recurring headache, and also pain and stiffness in her left shoulder. The Employment Tribunal decided she was not disabled within the DDA, on the basis that the headaches did not have the required substantial effect, and neither condition was likely to last 12 months.
The Employment Appeal Tribunal allowed the appeal on the 12 month point, but held the tribunal was entitled to decide that the effects of the headaches were not substantial, i.e. not more than minor or trivial. Here I shall only deal with this latter point, on the level of the effects.
What is ‘minor or trivial’?
Broadly, a disability is defined in the DDA, and in the Equality Act 2010 which has replaced it, as a physical or mental impairment which has a ‘substantial’ and long-term adverse effect on one’s ability to carry out normal day-to-day activities.
The 2006 guidance on definition of disability says that an effect on normal day to day activities is ‘substantial’ if it is more than minor or trivial. According to paragraph B1 of the guidance: “The requirement that an adverse effect on normal day-to-day activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people. A substantial effect is one that is greater than the effect which would be produced by the sort of physical or mental conditions experienced by many people which only have ‘minor’ or ‘trivial’ effects….”
The Employment Appeal Tribunal commented that “guidance does not have the effect of statute and is not declarative of the law. It is for the courts to declare what the law is. It may be, and on a relevant occasion the courts have decided, that the guidance given does not reflect the law.”
In holding that the headaches did not have a substantial effect, the Employment Tribunal had said at paragraph 12:
“I have referred again to the statutory guidance as to the definition of disability and in particular when considering the headaches to the meaning of substantial adverse effect. Taking that into account I find that these headaches, although by no means negligible, did not give rise to a substantial adverse effect within the meaning of the Act. In my judgment, again referring to the words in the guidance, one could not describe these headaches as trivial. However they are, as I find, an example of the sort of physical condition experienced by many people which has what can fairly be described as a minor effect. I have no doubt that the headaches are unpleasant while they last. However, many people suffer pains whether in the form of headaches, backaches, neck pain or whatever that is either at a relatively low level or, as is the case here, of relevantly short duration and taking that into account I find that there was not a substantial adverse effect amounting to disability.”
The claimant argued to the Employment Appeal Tribunal that since the adverse effect was found to be more than trivial, it necessarily followed that the ‘substantial adverse effect’ requirement was satisfied.
The Employment Appeal Tribunal (EAT) disagreed. The Employment Tribunal was entitled to come to the conclusion it did: “This is not a statute. It is a document giving guidance which has to be regarded. ‘There is nothing, in my judgment, wrong in law or amounting to a misdirection of law for an Employment Judge to conclude that an effect of an impairment was more than “trivial” and yet still “minor” as opposed to “substantial”‘.
Of greater moment, said the EAT, was the fact that the reasoning of the Tribunal does not simply baldly assert that the effect is minor, though more than trivial. Paragraph 12 (quoted above) follows quite closely the approach which is recommended in paragraph B1 of the guidance.
This case was decided under the Disability Discrimination Act 1995. For discrimination on or after 1st October 2010, s.212(1) Equality Act 2010 now defines ‘substantial’ as meaning ‘more than minor or trivial’.
Accordingly, the words are now statutory, rather than just in guidance. It is not clear how courts considering Equality Act cases will deal with the possibility that an effect may be more than ‘trivial’ but not more than ‘minor’. A practical solution may be to see the two terms as clarifying each other and intended to mean pretty much the same.
In interpreting these terms, the courts may well for the Equality Act 2010 – as they did in this case – look to the explanation in the guidance that a disability should be a “limitation going beyond the normal differences in ability which may exist among people”, and accordingly “a substantial effect is one that is greater than the effect which would be produced by the sort of physical or mental conditions experienced by many people which only have ‘minor’ or ‘trivial’ effects.” That wording is carried forward into the 2011 guidance for the Equality Act 2010. Note that stammering (though its effects are sometimes hidden) does go beyond the normal dysfluencies found in non-stammerers.