Employment Appeal Tribunal, 1998. Full judgment: www.bailii.org.
The applicant was a paranoid schizophrenic and had been dismissed by his employer following complaints of colleagues. He imagined that others could access his thoughts, and misinterpreted words and actions of colleagues in a paranoid way. Also, he often left the office, due to auditory hallucinations. However, he could care for himself at home, dealing with shopping, cooking and personal hygiene without help.
The industrial tribunal held that the adverse effect of the impairment on normal day-to-day activities was not substantial, since he was able to perform his domestic activities without assistance and to carry out his work to a satisfactory standard.
Held by the Employment Appeal Tribunal (EAT): he was “disabled”. The EAT gave detailed guidance generally on the proper approach for determining whether a person is disabled. Interesting quotes include the following:
At page 309:
“In order to constitute an adverse effect it is not the doing of the acts which is the focus of attention but rather the ability to do (or not to do) the acts. Experience shows that disabled people often adjust their lives and circumstances to enable them to cope for themselves. Thus, a person whose capacity to communicate through normal speech was obviously impaired might well choose, more or less voluntarily, to live on their own. If one asked such a person whether they managed to carry on their daily lives without undue problems, the answer might well be “Yes;” yet their ability to lead a “normal” life had obviously been impaired. Such a person would be unable to communicate through speech and the ability to communicate through speech is obviously a capacity which is needed for carrying out normal day-to-day activities, whether at work or home. If asked whether they could use the telephone, or ask for directions or which bus to take, the answer would be “No”. Those might be regarded as day-to-day activities contemplated by the legislation and that person’s ability to carry them out would clearly be regarded as adversely affected.
“Furthermore, disabled persons are likely, habitually, to play down the effect that their disabilities have on their daily lives. If asked whether they are able to cope at home, the answer may well be “Yes”, even though, on analysis, many of the ordinary day-to-day tasks were done with great difficulty due to the person’s impaired ability to carry them out. Mr Blyghton observed that it was partly for this reason that the Green Card scheme did not work as it had been intended. The focus of attention required by the Act is on the things that the applicant either cannot do or can only do with difficulty, rather than on the things that the person can do. ….”
(Comment: The above has been much quoted by subsequent tribunals, including the statement that the focus is on what the applicant cannot do or can do only with difficulty rather than on what he can do.)
At page 310:
“‘Substantial’ might mean ‘very large’ or it might mean ‘more than minor or trivial’. Reference to the Guidance shows that the word has been used in the latter sense: paragraph A1. The tribunal may, where the applicant still claims to be suffering from the same degree of impairment as at the time of the events complained of, take into account how the applicant appears to the tribunal to “manage”, although tribunals will be slow to regard a person’s capabilities in the relatively strange adversarial environment as an entirely reliable guide to the level of ability to perform normal day-to-day activities.
The EAT also gave a much quoted summary of the rules on disregarding measures being taken to treat or correct a disability, in the context of taking medication:
“The tribunal will wish to examine how the applicant’s abilities had actually been affected at the material time, whilst on medication, and then to address their minds to the difficult question as to the effects which they think there would have been but for the medication: the deduced effects. The question is then whether the actual and deduced effects on the applicant’s abilities to carry out normal day-to-day activities is clearly more than trivial.”
