What is a 'disability'?
To fall within the Equality Act 2010, a communication disorder normally has to be a 'disability' as defined. Broadly, it needs to have a long-term and 'more than minor or trivial' effect on normal day-to-day activities.
- To be protected by Equality Act 2010, a condition usually must be a 'disability' as defined in the Act.
- This definition of 'disability' normally only applies for the Equality Act, e.g. not for welfare benefits.
- The most important points to pass the 'disability' test are generally that the effect of the impairment is substantial and long-term;
- Tribunals must take account of a statutory guidance document. This document includes various examples on communication.
- There are more detailed rules in the Act which alter the basic definition of 'disability'.
A communication disorder falls within the Equality Act if is a 'disability' as defined by the Act.
(Even if it is not a 'disability' within the Act, it may sometimes be protected as a 'perceived disability' (below). However, a claimant's main argument is likely to be that it is a 'disability' as defined.)
It is a matter of whether the Equality Act's legal definition of 'disability' is met.The question is not:
- whether the claimant sees themself as disabled; or
- whether he or she would generally be viewed by the public as disabled.
The 'disability' test in Equality Act 2010 largely applies only to discrimination or harassment claims under the Equality Act. There are different tests for other legislation. Meeting the Equality Act test of disability does not necessarily mean one is entitled to welfare benefits, or to a blue badge for example.
The basic definition
A person is 'disabled' if he or she has "a physical or mental impairment [which] has a substantial and long-term adverse effect on [the person's] ability to carry out normal day-to-day activities." (EqA s.6)
This definition is dealt with in more detail below. However:
- The main question is often whether the effect on normal day-to-day activities is 'substantial'. This is not too difficult a test to meet - 'substantial' only means 'more than minor or trivial' (EqA s.212).
- 'Long term' means broadly at least 12 months. With some communication disorders there will be a question whether this requirement is met.
It is for the claimant to show that he or she meets the definition of disability.
There is Statutory Guidance on the definition of disability. This gives numerous examples of different communication disorders falling within the definition.
More detailed rules
The basic legal definition of 'disability' is modified by EqA Schedule 1 Part 1. This deals for example with effects which vary over time, or which are improved by ongoing medical treatment. Many of those special rules are dealt with on this website - see below.
Under special rules, certain conditions are treated as a 'disability' without having to show they meet the normal definition. Examples include cancer, multiple sclerosis, and often other progressive conditions. Also a limited number of impairments are expressly excluded from the Equality Act. See below Rules for particular conditions.
Physical or mental impairment
There must be a 'physical or mental impairment' .This should not usually be a problem with communication disorders. More on physical or mental impairment...
The effect of the impairment on ability to carry out normal day-to-day activities must be 'substantial'. 'Substantial' only means 'more than minor or trivial'. More on substantial effect on normal day-to-day activities...
'Long term' means broadly at least 12 months. Even if there are no longer substantial effects, it is enough that these 'could well' re-occur outside the 12 months. Often it will be clear that the disorder is long-term. However, sometimes there will be a question of whether this requirement is met - e.g. for some voice disorders. More on long term effect...
People with communication disorders may seek to avoid situations where they find it difficult to communicate. They may also take other steps to try and hide the impairment. It seems this avoidance or hiding can be taken into account towards the impairment having a 'substantial effect'. More on avoidance/hiding...
Effect of treatment and devices
Effects may be masked by ongoing measures being taken to treat or correct the impairment. The Equality Act says that one looks at what the likely effect of the impairment would be without such measures. More on effect of treatment and devices...
Most of the Equality Act includes someone who used to have a 'disability' but no longer does (EqA s.6(4)). The adverse effects may have stopped, or may no longer be 'substantial'.
Treated as a disability
Cancer, HIV infection and multiple sclerosis are seen as disabilities within the Equality Act whether or not the normal definition of disability is met (EqA Schedule 1 para 6).
Under regulations, this also applies to people who have been certified by a consultant ophthalmologist as blind, severely sight impaired, sight impaired or partially sighted (Equality Act 2010 (Disability) Regulations 2010).
Some progressive conditions such as cancer and multiple sclerosis are automatically treated as a disability in any event. See the previous subheading.
However, there is also a more general rule to help people in the early stages of other progressive conditions, where effects on normal day-to-day activities are not yet 'substantial'. EqA Schedule 1 para 8 says basically that if the progressive condition is likely to result in a 'substantial' effect in future, there is a disability from the time the condition has some effect on normal day-to-day activities. The claimant need not show the effects are substantial now. 'Likely' just means that the effects 'could well' be substantial in future. The long-term requirement also has to be met.
The Statutory Guidance on the definition of disability, para B20, includes motor neurone disease as an example of the progressive conditions to which this provision applies.
A limited number of impairments are expressly excluded from the Equality Act, even if they would meet the normal definition of disability. Examples include various addictions, and exhibitionism. The exclusions are in Part 2 of The Equality Act 2010 (Disability) Regulations 2010. There are cases relating to the scope of the exclusions, for example there may be related impairments which are still covered by the Equality Act.
This is where the person does not actually have a 'disability' as defined in the Equality Act, but the discriminator mistakenly thinks they have the disability.
It appears the intention of the Government is that - in the case of direct discrimination and harassment - perceived disability should be covered by Equality Act 2010. That has not yet been confirmed by court decisions. There would be problems to be resolved - in particular the courts would need to establish how far the detailed requirements of the legal definition of 'disability' must be perceived to have been met.
Perceived disability does not apply to other types of claim under the Equality Act, such as 'discrimination arising from disability' and the duty to make reasonable adjustments.
A claimant's primary argument is not likely to be 'perceived discrimination'. Their main argument is likely to be that the communication disorder actually meets the legal definition of 'disability'.
For direct discrimination and harassment, it may be possible to use perceived disability if, for example:
- effects of a communication disorder are held not to be 'substantial' or 'long-term' (so it is not actually a 'disability' as defined), or
- if someone with a communication difficulty is wrongly perceived to have a mental health condition.
Example: employer wrong about effects
A job applicant discloses that they have a long-term communication disorder. Much of the job involves work on the telephone. The employer assumes the disorder means they will have a significant problem with telephone calls, and does not recruit them. In fact the person does not have a significant problem with telephone calls. On a claim for direct discrimination (perhaps on the basis of stereotyping), the job applicant may not need to show that the impairment actually has a substantial adverse effect on day to day activities.
'Perceived' disability is not itself a legal term. The legal reasoning is that discrimination can be 'because of' or 'related to' disability even if the 'victim' is not actually disabled.
In the case of harassment, protection seems to go further. For example, it seems harassment could include imitating a stammer where the harasser knows the 'victim' does not have a stammer.