The claimant had epilepsy and vitiligo. From online research she took various steps which she was convinced would help her conditions but were not supported by professional advice, such as avoiding coffee and alcohol, and not exposing her body to cosmetics and cleaning products. The EAT held that these restrictions on her life – due to her unsubstantiated beliefs – were not effects of her epilepsy and vitiligo. Accordingly they were not relevant in deciding whether these conditions had a substantial effect so as to be disabilities within the EqA.
2021, Employment Appeal Tribunal. Full decision www.bailii.org/uk/cases/UKEAT/2021/2020-000110.html.
The claimant had epilepsy and vitiligo. The latter is a skin condition. Her epileptic seizures were nocturnal; she was not conscious of them as they were taking place, but became aware of them the following morning by reason of a bitten tongue, enuresis or waking out of her bed.
To minimise her conditions (including the risk of SUDEP from epilepsy which particularly worried her) the claimant was prone to conducting extensive online research, formulating conclusions and relying on her own view, in some instances, over and above expert professional advice. For example she avoided coffee and alcohol, and strove to avoid any exposure of her body to chemicals such as cosmetics and ordinary cleaning products. A measure based on medical advice was that for the vitiligo she kept her skin covered and attempted to avoid sunlight.
(She also argued her conditions were due to a previous cancerous tumour, so she had an EqA disability since cancer is automatically a disability. This argument was dismissed by the courts and I don’t discuss it here.)
Held by the EAT: The various restrictions the claimant placed on her life due to her own unsubstantiated beliefs were not relevant to whether her conditions were disabilities. However the case was referred back to the tribunal to decide whether – apart from that those restrictions – her conditions had sufficient adverse effect to be disabilities within the Equality Act.
Restrictions on life due to unsubstantiated belief
To be a disability within the Equality Act, her epilepsy and vitiligo needed to have a substantial effect on her ability to carry on normal day-to-day activities. The employer argued that the restrictions the claimant chose to place on her life, due to her unsubstantiated belief that they helped her conditions, were not an effect of the epilepsy and vitiligo and so did not count towards these conditions having a substantial effect.
The EAT said the substantial effect on her ability to carry on normal day-to-day activities must be caused by the epilepsy and/or vitiligo (para 59).
The EAT accepted that, for example, it would be an effect caused by the impairment if “the claimant was following sound medical advice that indulging in the particular activity would, indeed, risk or cause some harmful exacerbation or reaction of their condition”. In that case “the underlying basis of causation would be established by the evidence that, objectively, the impairment does affect the ability to engage in that activity.” However here the claimant relied purely on her own belief, without any evidence accepted by the tribunal that she was right in what she believed. In such a case, her actions could not be seen as an effect of the impairment.
It might be different if the tribunal found she had a distinct mental impairment, giving rise to her fears and avoidance behaviour, akin to a phobia. However she did not advance any such case. Her case was that she stuck to her views, as her guide to action, because they were right and the contrary advice from her clinicians was simply wrong (para 59, 70-71).
Also it had not been suggested that epilepsy – which was probably a physical impairment but the same applied even if it was mental – was the sort of condition that itself directly or intrinsically causes aversion or avoidance behaviours, in the direct or intrinsic way that a mental impairment such as a phobic, obsessive or compulsive disorder or a severe stress reaction disorder might do (para 60).
Sent back to tribunal for reconsideration
The claimant might still be disabled, but the EAT sent the case back to the employment tribunal to decide this.
On her epilepsy, the various restrictions the claimant placed on her life due to her own unsubstantiated beliefs were not relevant. Nevertheless the EAT came very close to concluding that the tribunal made sufficient other findings of fact to support its conclusion that the claimant’s epilepsy was a disability, having regard to:
- the statutory guidance at D16,
- what the EAT was inclined to think is the better view, that sleep is in itself a normal day-to-day activity,
- the tribunal’s findings of fact as to the frequency of the seizures at the relevant time, ie about four times a month, and
- the aftermath that the claimant discovered on waking up the morning after having had such a seizure.
However the EAT was just persuaded that it should send the case back to the tribunal to reconsider the question of whether her epilepsy was a disability. (para 86-88, 48)
On her vitiligo, again the various restrictions the claimant placed on her life due to her unsubstantiated beliefs were not relevant. However the tribunal should consider the significance of exposure to the sun in the claimant’s particular case (para 82, 85).
Some people suggest, for example that avoiding caffeine helps their stammer. On the basis of this case, avoiding eg (non-decaf) coffee would not be seen as part of the effect of the stammer unless the claimant was following professional advice, or perhaps could produce some evidence (either expert or possibly from their own experimentation) that avoiding it did – or might well? – help their speech.
The issues in this case seem to me very different from avoidance to hide one’s stammer or other disability. Hidden effects can be relevant towards the stammer being a disability under the Equality Act: Disability: Hiding the stammer.