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The test for ¡®disability¡¯

This question is one that will be determined by the employment tribunal having regard to the available evidence, including any relevant medical evidence. The test that will be applied by the tribunal is whether the person has a ¡°physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities¡±.

¡°Impairments¡±, particularly visible ones, may be easy to identify. However, others may not be so immediately obvious (for example, those arising from a mental health condition). ¡°Day-to-day activities¡± will generally be things that people do on a regular or daily basis such as shopping, reading, writing, having a conversation, getting washed or dressed, walking, etc. To be ¡°substantial¡± the effect has to be more than minor or trivial while an effect is long-term only if it has lasted for 12 months or is likely to last for at least 12 months or is likely to last for the rest of the life of the person affected.

The importance of medical evidence

In determining whether this test is met, a tribunal will have regard to any evidence of the alleged disability.

In a recent Employment Appeal Tribunal (EAT), the claimant¡¯s alleged disability arose from a condition that made him vulnerable to bronchitis and breathing difficulties when temperatures dropped below C. The tribunal heard that the claimant¡¯s employer had, in recognition of this condition, provided him with a portable heater, which, together with additional clothing, helped the claimant maintain a temperature of C. However, in September 2007 the claimant¡¯s employer removed the portable heater, and this resulted in the claimant¡¯s bringing a disability discrimination claim. On appeal, the EAT considered whether the claimant¡¯s condition amounted to a disability.

The only medical evidence that had been available to the tribunal was a note from the claimant¡¯s GP created two years before the claim was lodged. The tribunal did not have the benefit of a formal medical report addressing the nature or extent of the claimant¡¯s condition. Having regard to this evidence, and applying the tests outlined above, the EAT accepted that the tribunal had been entitled to find that the claimant was not disabled and his appeal was dismissed.

This case shows that in determining whether a claimant is disabled, a tribunal will attach considerable weight to appropriate medical evidence. Often this will consist of expert evidence from a GP, consultant or occupational health adviser. In many cases the parties will agree (or be ordered by the tribunal) to jointly instruct an expert to examine the claimant and prepare a report that will then be presented to the tribunal as the parties¡¯ joint medical evidence. However, while this evidence will be important, the existence or otherwise of a disability is not something that can be determined by the medical expert; it will ultimately be determined by the tribunal, applying the legal test to the available evidence.