Substantial effect on normal day-to-day activities
To be a 'disability' within the Equality Act, a communication disorder must have a substantial effect on ability to carry out normal day-to-day activities. 'Substantial' only means 'more than minor or trivial'. The effect must also be long-term.
- One requirement for being a 'disability' is that the impairment has a substantial effect on normal day-to-day activities.
- 'Substantial' means only 'more than minor or trivial'. The effect does not need to be 'severe'.
- The effect can include difficulty in speaking, writing, or understanding.
- The substantial effect must also be long-term.
- Normal day-to-day activities does not include things normal just for that individual, such as highly specialised work.
To count as a disability, it is usually a requirement that the impairment has a substantial adverse effect on the person's ability to carry out normal day-to-day activities (EqA s.6).
The adverse effect can include difficulty in speaking, writing, or understanding. The effect must also be long-term.
'Substantial' only means 'more than minor or trivial'. So the test is not that difficult to meet. The impairment does not have to be 'severe'.
It is for the claimant to show that the effects are substantial.
Some particular points:
- hidden effects of an impaiment can be relevant;
- treatment or other measures being taken to correct an impairment can generally be disregarded. One looks at how the impairment would be without them;
- effects can be variable - they do not have to be there all the time;
- past disabilities are also protected
- the effects must be on ability to carry out 'normal day to day activities'.
There is Statutory Guidance on the definition of disability. This discusses in some detail what is meant by the test. It also includes examples of different communication disorders, and of what is a substantial effect. See Statutory Guidance: Extracts and examples. The example on stammering illustrates that effects do not have to be severe. Paragraph D17 of the Guidance, dealing with 'communication', also includes examples on verbal dyspraxia, bipolar disorder and Aspergers syndrome.
What does 'substantial' mean?
'Substantial' is defined in the Equality Act as meaning 'more than minor or trivial' (EqA s.212(1)).
Paragraph B1 of the Statutory Guidance on the definition of disability explains this as follows:
From Statutory Guidance on definition of disability
"The requirement that an adverse effect on normal day-today 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 more than a minor or trivial effect..."
Paragraph B1, Statutory Guidance on the definition of disability
It can be argued that communication disorders will often be something going beyond the normal differences which exist between people.
The focus is on the things that the person cannot do, or can do only with difficulty, rather than on the things that they can do (Goodwin v Patent Office, 1999).
A person with a communication impairment may also have other impairments, often related. For example, the person may have other effects of a stroke, or of motor neurone disease or multiple sclerosis. These other impairments may well mean that the person has a disability under the Equality Act in any event. See also below Cumulative effects.
What to take into account
Guidance about communication
As regards communication, the Statutory Guidance on the definition of disability at paragraph D17 sets out some factors to take into account. It is guidance, and it does not mean that these are the only things to be taken into account. Paragraph D17 particularly mentions the following (see the link for full wording) :
- clarity of speech
- normal pace of speech
- normal rhythm of speech
- understanding someone else speaking normally in the person's native language
- understanding human non-factual information and non-verbal communication such as body language and facial expressions.
Paragraph B2 of the Statutory Guidance on the definition of disability says that in assessing whether the effect is substantial, the time taken by a person with an impairment to carry out a normal day-to-day activity should be considered. It should be compared with the time it might take a person who did not have the impairment.
The Guidance is not saying that you only have a disability if you take longer to say things, but this is a factor.
An impairment may not have a substantial effect on ability to carry out a particular normal day-to-day activity in isolation. However, its effects on more than one activity, taken together, could result in an overall substantial adverse effect (paragraphs B4 and B5 of the Statutory Guidance on the definition of disability, Ginn v Tesco Stores Ltd, UKEAT/0197/05).
Also effects of different impairments can be combined. Paragraph B6 of the Statutory Guidance uses a speech impairment to illustrate a person having more than one impairment, where any of the impairments alone might not have a substantial effect. The Guidance says that here account should be taken of whether the impairments together have a substantial effect overall on the person's ability to carry out normal day-to-day activities:
From Statutory Guidance on definition of disability
"A person has mild learning disability. This means that his assimilation of information is slightly slower than that of somebody without the impairment. He also has a mild speech impairment that slightly affects his ability to form certain words. Neither impairment on its own has a substantial adverse effect, but the effects of the impairments taken together have a substantial adverse effect on his ability to converse."
Statutory Guidance on the definition of disability, paragraph B6.
The Statutory Guidance on the definition of disability at paragraph B11 acknowledges that disabilities need not occur all the time to be within the Equality Act.
Environmental conditions may exacerbate or lessen the effect of an impairment. "Factors such as ... the time of day or night, how tired the person is, or how much stress he or she is under, may have an impact on the effects. When assessing whether adverse effects of an impairment are substantial, the extent to which such environmental factors, individually or cumulatively, are likely to have an impact on the effects should, therefore, also be considered" (para B11). Account should be taken of whether in those circumstances most people would be able to carry out an activity without an adverse effect (para D20).
An example of environmental conditions being taken into account:
From Statutory Guidance on definition of disability
"A woman has tinnitus which makes it difficult for her to hear or understand normal conversations. She cannot hear and respond to what a supermarket checkout assistant is saying if the two people behind her in the queue are holding a conversation at the same time.
This has a substantial adverse effect on her ability to carry out the normal day-to-day activity of taking part in a conversation."
Statutory Guidance on the definition of disability, paragraph D20.
So it should be relevant if a communication impairment tends to be more severe when tired or stressed. The Statutory Guidance on the definition of disability at paragraph B10 also says the possibility of coping strategies breaking down should be taken into account, for example where a person with dyslexia is placed under stress.
Sometimes there may be no apparent reason for variation. A person may be having a 'good day', for example, and then suddenly problems arise. Presumably this should also be taken into account towards there being a substantial effect.
Longer term variations are also relevant. There can be a disability now if substantial effects could well recur in future: see Long-term effect: Likely reoccurence.
The substantial effect must be on one's ability to carry out 'normal day-to-day activities'. This phrase is not defined in the legislation. However, there have been cases on it, and it is discussed in Section D of the Statutory Guidance on the definition of disability. Some key points:
- In general, day-to-day activities are things people do on a regular or daily basis.
- 'Normal day-to-day activities' is not intended to include activities normal only for a particular person, or a small group of people. Account should be taken of how far it is carried out by people on a daily or frequent basis.
- Activities which are highly specialised or involve highly specialised levels of attainment would not be regarded as normal day-to-day activities. For example, the Statutory Guidance on the definition of disability (paragraph D8-D9) says a watch repairer carrying out delicate work with highly specialised tools, or a person playing a musical instrument to a high standard of achievement, would not be normal day-to-day activities.
Examples given in paragraph D3 of the Statutory Guidance with particular relevance to communication include the following (and they are only examples):
- having a conversation
- using the telephone
- watching television
- travelling by various forms of transport,
- taking part in social activities.
Paragraphs D3 and D10 go on to say that normal day-to-day activities can include general work-related activities, and study and education-related activities, for example:
- interacting with colleagues,
- following instructions,
- using a computer keyboard or mobile phone,
- carrying out interviews,
- preparing written documents,
- keeping to a timetable or shift pattern.
In the light of European Union law, 'normal day-to-day activities' may even go somewhat further than the Statutory Guidance suggests:
Case: promotion exam as 'normal day-to-day activity'
A senior police officer with dyslexia was held to have a 'disability' within the Disability Discrimination Act 1995 (the predecessor of the Equality Act 2010). This was because of the effect his dyslexia had in a high pressure exam for promotion. The exam was a 'normal day-to-day activity', said the Employment Appeal Tribunal (EAT). The EAT said it would have decided this anyway under British law. However also the EAT was bound by the European Union court's decision in Chacón Navas. There the European Court had considered that 'disability' is a long-term "limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life". The EAT said it must read the British definition of disability in a way which gives effect to European Union law. That could be readily done simply by giving a meaning to 'day-to-day activities' which includes the activities which are relevant to participation in professional life.
Paterson v Commissioner of Police of the Metropolis (link to stammeringlaw.org.uk), (2007) Employment Appeal Tribunal.