The EAT stressed that in assessing whether the effect of an impairment is “substantial” so as to be a disability under the Equality Act, the tribunal should start from the statutory wording of whether the effect is more than “minor or trivial”. The Guidance and Code of Practice do not add extra requirements; they should not be read as statutes, and are most likely to be useful where the answer under the statute is unclear. The tribunal should compare the claimant as they are with how they would be without the impairment, so it does not matter if the claimant’s abilities are better than most people’s. The EAT also made helpful comments on the relevance of coping strategies.
2021, Employment Appeal Tribunal. www.bailii.org/uk/cases/UKEAT/2021/0197_20_0904.html
The claimant was subject to disciplinary proceedings by a new line manager who alleged he had falsely recorded his working times, recording more hours than he had worked. The claimant argued that he had agreed with his old line manager that he would record working hours of 9 to 5, irrespective of the exact hours he worked. The claimant said that on occasions he was absent during the working day, but often worked until late into the night at home; working considerably more than his contracted hours in total. He said he found it difficult to accept the new time management rules and to communicate with his new manager.
While the disciplinary proceedings were ongoing, the employer published a proposal to restructure the claimant’s department. The claimant accepted redundancy. The claimant said he did this was because there was an agreement that the disciplinary proceedings would be discontinued and he could leave with redundancy and notice pay.
Also during the disciplinary proceedings, he was referred for an assessment of whether he was on the autistic spectrum. As a result he was diagnosed with autistic spectrum disorder, and specifically with Asperger’s Syndrome. This diagnosis was made after he had left the job. However the case at this stage related only to whether he had a disability, not whether the employer had actual or constructive knowledge of the disability. A tribunal would have to decide the issue of knowledge later, if he was found to have a disability.
The claimant brought an Equality Act claim for disability discrimination. The employment tribunal held the claimant was not disabled under the Equality Act. The claimant appealed.
Held by the Employment Appeal Tribunal: the tribunal’s decision that he was not disabled was flawed. The matter should be remitted to a fresh tribunal to decide.
Employment Appeal Tribunal decision: main points
The Employment Appeal Tribunal (EAT) particularly overturned the tribunal decision because it failed to focus on the main underlying claim: that because of the claimant’s autism and Asperger’s he found it very difficult to deal with changes of procedure and, particularly in the context of stressful disciplinary proceedings, was not able to communicate properly with his line manager. The claimant contended that he was so seriously affected that he had to leave work.
However the EAT decision is important generally for its discussion of how tribunals should assess whether the effects of an impairment on normal day-to-day activities are “substantial”. I suspect its analysis may be much cited in future cases, so I’ve set it out in some detail below. However I think the following two points are particularly important.
Main points: Statute more important than Guidance and Code
The Equality Act 2010 defines substantial as “more than minor or trivial” (s.212(1) EqA). Also however, the 2011 Guidance on the definition of disability says the requirement that an adverse effect on normal day-to-day activities should be substantial “reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people” (below Normal differences in ability).
The EAT in this case emphasised that tribunals should start with the wording of the statute, the Equality Act. Was the effect only “minor or trivial”? If not, then it is “substantial” within the Equality Act. The courts had held (and the EAT here agreed) this means one should look at how the claimant is with the impairment compared with how the same individual would be without it. So for example in the Paterson decision below a high achiever was held to have a disability, despite the fact that his writing abilities (even with his dyslexia) were greater than most people’s.
The EAT said the Guidance and Code of Practice were most likely to be useful where the answer to the question (eg whether the effect is more than “minor or trivial”) is unclear. If the answer is clear it may not be necessary to consider the Guidance or Code at all. Also if the Guidance or Code conflict with the statute, the statute must prevail (below Relevance of the Guidance and Code of Practice).
How did that apply in the present case? The claimant had reported that he did not find it easy to speak in public or to socialise. The employment tribunal said that whilst he clearly had to prepare mentally for doing these things, he clearly was not prevented from doing them or substantially adversely impacted when he did them. Also on his own evidence, said the tribunal, he was not somebody who found it substantially harder to do these things than others do. The tribunal said:
“Many people find public speaking and socialising difficult and many people adjust their behaviour in order to manage these occasions.”
The EAT however held that the tribunal had taken the wrong approach. These comments by the tribunal showed an erroneous focus on a comparison between the claimant and other people generally, rather than with how the claimant would be if he was not disabled.
Main points: Coping strategies and avoidance behaviours
The EAT also considered paragraphs B7 to B10 of the 2011 Guidance on failure to modify behaviour. The first paragraph of B7 says that “account should be taken of how far a person can reasonably be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-to-day activities”. The EAT commented that on occasions excessive focus is given to this first paragraph of B7, without sufficient consideration of the rest of that section which significantly modifies that general guidance.
The EAT said that on an overview of this part of the Guidance, “where a person has an impairment that substantially affects her/his ability to undertake normal day-to-day activities the person is unlikely to fall outside the definition of disability because they have a coping strategy that involves avoiding that day-to-day activity. This part of the guidance is concerned generally with avoidance of things that are not a component of normal day-to-day activities.” It also said later (paragraph 78), in response to what the tribunal said about the claimant’s impairment not having an adverse effect because of his coping strategies: “If the claimant had significantly altered his day-to-day activities, or avoided some day-to-day activities, that would not be a proper basis for concluding that he is not disabled.” These comments are important as case authority for limiting the effect of paragraph B7 of the Guidance
The EAT also criticised the tribunal decision for not considering whether the claimant’s coping strategies might break down in some circumstances, such as when a person is under stress (para B10 of the Guidance), and for not considering whether his coping strategies might constitute measures to be disregarded pursuant to paragraph 5 of Schedule 1 EqA 2010.
If there is any tension between the Guidance and any provision of the EqA 2010, the statute must prevail, said the EAT (para 62).
Definition of disability
The Employment Appeal Tribunal (EAT) reviewed the Equality Act definition of disability in some detail, and in particular what is a “substantial” adverse effect.
The EAT started by quoting from the 1998 Goodwin case, which analysed the original Disability Discrimination Act 1995 (DDA) definition of disability into four components (§17):
“3. Section 1(1) defines the circumstances in which a person has a disability within the meaning of the Act. The words of the section require a tribunal to look at the evidence by reference to four different conditions.
(1) The impairment condition. Does the applicant have an impairment which is either mental or physical?
(2) The adverse effect condition. Does the impairment affect the applicant’s ability to carry out normal day-to-day activities …, and does it have an adverse effect?
(3) The substantial condition. Is the adverse effect (upon the applicant’s ability) substantial?
(4) The long-term condition. Is the adverse effect (upon the applicant’s ability) long-term?
Frequently, there will be a complete overlap between conditions (3) and (4) but it will be as well to bear all four of them in mind. Tribunals may find it helpful to address each of the questions but at the same time be aware of the risk that disaggregation should not take one’s eye off the whole picture.” [emphasis in italics added by EAT in Elliot]
Goodwin v Patent Office, EAT, 1998
The EAT in Elliot explained that the “disaggregation” point is important. It said the legal mind tends to split statutory provisions into components, but there is a risk that this may be at the cost of maintaining an overview. Often the components can only properly be analysed by seeing them in the context of the provision, and statute, as a whole. This can be particularly important if some of the components are conceded, or not significantly disputed. The EAT in Elliot gave some examples of that. (§18)
Focus on what a disabled person cannot do
The EAT in Goodwin had held that the focus of attention is on the things that the claimant either cannot do or can only do with difficulty, rather than on the things that the person can do. (§21)
The fact that a person can carry out such activities does not mean that his ability to carry them out has not been impaired. The focus of the test is on the things that the claimant either cannot do, or can only do with difficulty, rather than on the things that the person can do. (§22)
The EAT cited Ahmed v Metroline Travel, 2009, where the EAT had said that as a matter of principle, it is impermissible for a tribunal to seek to weigh what a claimant can do against what s/he cannot do, and then determine whether s/he has a disability by weighing those matters in the balance. (§23)
Compare a disabled person with the position if s/he did not have the disability
In Paterson v Commissioner of Police of the Metropolis, 2007, the EAT had held that the only proper basis is to compare the effect on the individual of the disability, and this involves considering how he in fact carries out the activity compared with how he would do if not suffering the impairment. The EAT in Elliot commented that this conclusion fits naturally with the wording of s. 6 EqA 2010. For the importance of this, see below Paterson decision. (§24-25)
Meaning of the word “substantial”
S.212 Equality Act 2010 defines substantial as meaning “more than minor or trivial”. Before the 2010 Act, this was just in guidance. Its inclusion in s.212 EqA 2010 had now “pushed it up the hierarchy of interpretation”. (§26-27)
The EAT in Aderemi v London South East Railway, 2012, had emphasised the “important but subtle point” that the Equality Act does not create a spectrum running smoothly from those matters which are clearly of substantial effect to those matters which are clearly trivial. It provides for a bifurcation: unless a matter can be classified as within the heading “trivial” or “insubstantial”, it must be treated as substantial. There is therefore little room for any form of sliding scale between one and the other. (§28)
Relevance of the Guidance and Code of Practice
The EAT considered the 2011 Guidance on definition of disability and the statutory Codes of Practice. It emphasised that what is most important is the wording of the Equality Act itself, including whether the effect of the impairment is “more than minor or trivial”. The EAT explained that the Guidance and Codes are most likely to be useful where the position under the Equality Act itself is unclear. The Guidance and Codes should not be read as if they themselves were statutes. In more detail, the EAT said:
31 …I do not downplay the great assistance that the Code and Guidance often provide; but they are not to be followed without thought, to be construed as if statutes; and must always give way to the statutory provisions if, on a proper construction, they differ from the Code or Guidance. Where consideration of the statutory provision provides a simple answer, it is erroneous to find additional complexity by considering the Code or Guidance.
32. There is a statutory definition of the word “substantial” as “more than minor or trivial”. The answer to the question of whether an impairment has a more than minor or trivial effect on a person’s ability to carry out day-to-day activities will often be straightforward. The application of this statutory definition must always be the starting point. We all know what the words “minor” and “trivial” mean. If the answer to the question of whether an impairment has a more than minor or trivial adverse effect on a person’s ability to perform day-to-day activities is “yes”, that is likely to be the end of the matter. It is hard to see how the answer could be changed from “yes” to “no” by further pondering the Code or Guidance.
The EAT cited Taylor v Ladbrokes (bailii.org), 2016, where the EAT had said the Guidance is not the statutory language itself; it is therefore a gloss on it. Tribunals should start with the statutory language, consider the guidance and decide, having looked at both, what the statute means, concentrating primarily on the language of the statutory provision itself. (§33)
The Guidance and Code were, said the EAT, most likely to be useful where the answer to the question is unclear. If the answer is clear it may not be necessary to consider the Guidance or Code at all. In Vicary v British Telecommunications, 1999, the EAT had said the Guidance would only be of assistance in what might be described as marginal cases. On the facts of Vicary the EAT held there was no need for the employment tribunal to refer to the Guidance once it had properly understood the meaning of the word “substantial”. The EAT in Vicary criticised the tribunal for having used the Guidance in a somewhat literal fashion to arrive at the surprising conclusion that the claimant was not substantially impaired in her ability to carry out normal day-to-day activities. (§34-35)
Normal differences in ability
The EAT then turned to what the Guidance and Code actually say. These say that a substantial effect is one that is more than a minor or trivial effect, and the requirement that an adverse effect on normal day-to-day activities should be substantial “reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people”. (More: “Substantial” effect>Going beyond normal differences between people: outline.) (§36-37)
The EAT pointed out that this may be seen as self-contradictory. There are differences between non-disabled people that are much more than minor or trivial, particularly if “people” includes the whole population of the UK. The EAT said what is most important is the statutory definition of “substantial” as being “more than minor or trivial”. The Guidance cannot alter that. The EAT suggested that “people” in the Guidance may be those who are, very broadly speaking, in a similar section of the population to the claimant, other than not being disabled (§38). In more detail:
38 … The starting point is to remember that the statutory definition of the word “substantial” is “more than minor or trivial”. If the adverse effect has a more than minor or trivial effect on the ability of a person to carry out day-to-day activities the definition is met; no consideration of the abilities of some group of people, or section of the population, can alter that determination. It is also important to realise that the Guidance and Code are not to be interpreted as statutes; but make common sense points to help keep lawyers’ feet on the ground when thinking about the practicalities of disability. There may be a simple answer; that “people” are those who are, very broadly speaking, in a similar section of the population to the claimant, other than not being disabled. This is not to suggest that there should be some elaborate construction of pools of comparison, or detailed analysis of groups of “people”; far from it. And it all matters not a jot if the impairment clearly has a more than minor or trivial effect on day-to-day activities.
The EAT considered the decision of Paterson v Commissioner of Police for the Metropolis decision in the light of this (§39-45). The claimant had achieved the rank of chief inspector, and had been complimented on his report-writing skills. He then discovered he was dyslexic, and claimed reasonable adjustments in an exam for promotion. His writing skills were much better than most people’s. Nevertheless the EAT had upheld his claim that he was disabled. The EAT in Paterson said (§45):
“ … In our judgment, the only proper basis, as the Guidance makes clear, is to compare the effect on the individual of the disability, and this involves considering how he in fact carries out the activity compared with how he would do if not suffering the impairment. If that difference is more than the kind of difference one might expect taking a cross-section of the population, then the effects are substantial.”
The claimant in Paterson was a high achiever, but his dyslexia had a more than minor or trivial effect on his abilities compared with how he would be without the dyslexia. As the EAT in Elliot put it: “The determination of principle is that the adverse effect of an impairment on a person is to be compared with the position of the same person, absent the impairment. (§42-43)
What about the reference in Paterson to normal differences in a cross-section of the population? The EAT in Elliot (the present case) said this does not mean everyone in the UK, nor does it mean some average of all people in the population. Rather it refers to (§46):
“… a broad cross-section of “people” (the word used in the Guidance) broadly similar to the claimant, other than that they do not have the alleged disability. One might imagine it as a rough and ready cross-section of the population taken at approximately a claimant’s level.”
The EAT considered that in criticising this “normal differences” aspect of Paterson, the Upper Tribunal in PP v Trustees of Leicester Grammar School, 2014, misunderstood what the EAT in Paterson meant. (§47-50)
The EAT in Elliot also pointed out that in 2007, when Paterson was decided, the reference to “substantial” being “more than minor or trivial” was only in the Guidance, not in the statute; along with the suggestion in the Guidance that substantial means that an impairment has a greater effect than the “normal differences in ability which might exist among people”. The Paterson decision had to deal with the potential internal inconsistency. However that problem no longer exists. The definition of substantial as more than minor or trivial is now in s.212 EqA 2010, so any inconsistency must be resolved in favour of the statute. (§51)
(See further: “Substantial” effect>Effect on the individual.)
Workplace activities as normal day-to-day activities
The EAT said the other very important issue considered in Paterson was the correct approach to be adopted to normal workplace activities. Could normal day-to-day activities include a high pressure exam for promotion. The EAT in Paterson said it would have found this was an effect on normal day-to-day activities on the basis of British law alone. But in any event the European Court of Justice in Chacón Navas had held that “the concept of ‘disability’ must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life.” (§52-53)
The definition of disability had to be read in a way which gives effect to European Union law. The EAT in Paterson had said: “We think it can be readily done, simply by giving a meaning to day-to-day activities which encompasses the activities which are relevant to participation in professional life. Appropriate measures must be taken to enable a worker to advance in his or her employment. Since the effect of the disability may adversely affect promotion prospects, then it must be said to hinder participation in professional life.” (§53)
As to reasonable adjustments, the EAT commented that obviously the fact that an impairment ceases to have a substantial effect on a person’s workplace day-to-day activities because a reasonable adjustment is in place, does not mean that the person ceases to be disabled. (§55)
Coping and avoidance strategies
The EAT quoted paragraphs B7 to B10 of the 2011 Guidance on failure to modify behaviour. It commented that on occasions excessive focus is given to the first paragraph of B7, without sufficient consideration of the rest of that section which significantly modifies that general guidance (§58). The first paragraph of B7 says that “account should be taken of how far a person can reasonably be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-to-day activities.” However the EAT said on paragraphs B7 to B10:
59. On an overview of that part of the Guidance, it is clear that where a person has an impairment that substantially affects her/his ability to undertake normal day-to-day activities the person is unlikely to fall outside the definition of disability because they have a coping strategy that involves avoiding that day-to-day activity. This part of the guidance is concerned generally with avoidance of things that are not a component of normal day-to-day activities.
60. The provisions also make clear that if a coping strategy may breakdown in some circumstances, such as when a person is under stress, it should be taken into account when considering the effects of the impairment.
61. Elias J made this point at paragraph 28 in Paterson:
“28. There are also certain provisions which deal with coping strategies. In some cases they will prevent the impairment having adverse effects, but only where they can be relied on in all circumstances”.
62. If there is any tension between the Guidance and any provision of the EqA 2010, the statute must prevail.
The EAT also said later, in response to what the tribunal said about the claimant’s impairment not having an adverse effect because of his coping strategies:
78. … If the claimant had significantly altered his day-to-day activities, or avoided some day-to-day activities, that would not be a proper basis for concluding that he is not disabled. …
See also §72 of the EAT decision.
It is easy to see the Guidance and Codes of Practice as authoritatively setting out the law. This case is a reminder that they do not. Tribunals should start from the statutory wording.
This case partly related to the statement in the 2011 Guidance on the definition of disability (and in Codes of Practice) that the requirement that an adverse effect on normal day-to-day activities should be substantial “reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people” (“Substantial effect”>Going beyond normal differences between people, not yet updated for this case). The EAT suggested that “people” in the Guidance are those who are, very broadly speaking, in a similar section of the population to the claimant, other than not being disabled. I still think that statement in the Guidance is helpful for stammering, as discussed at that link. It can be argued that effects of stammering, such as blocking or switching words and phrases are indeed something which goes beyond normal differences which exist between people, even in a similar section of the population.