Not every type of illness or condition will result in an employee being categorised as disabled. Whether an employee is protected under the EqA will depend on the extent of the impairment and the effect it has on the employee. In order to qualify as a disability, the impairment must have a substantial adverse effect on the employee’s ability to carry out day to day activities. The impact cannot therefore be trivial.
What are “day to day activities”?
Under the Disability Discrimination Act 1995, an impairment was said to affect the ability of the person to carry out normal day-to-day activities only if it affected one of the following:
- manual dexterity;
- physical co-ordination;
- ability to lift, carry or otherwise move everyday objects;
- speech, hearing or eyesight;
- memory or ability to concentrate, learn or understand;
- perception of the risk of physical danger.
This list has not been replicated in the EqA. There has been a suggestion that this omission might make it easier to establish disability, however the test largely remains the same and there has been very little change in approach by employment tribunals so it is worth bearing this list in mind, although it should be remembered that it is not definitive.
Is depression covered by the EqA?
If it is the case that an employee is suffering from depression, or if this is suspected, they may be covered by the EqA.
Has their ability to remember, concentrate learn or understand been affected? Have they been forgetful? Have they found it difficult to follow instructions? Have they been taking a longer time to carry out their tasks when compared with colleagues (or compared with how long they took previously)?
A guidance document to accompany the EqA has also been published by the Government, “Guidance on matters to be taken into account in determining questions relating to the definition of disability.” (see link below and, in particular, the appendix).
It is important to think about the employee's normal day to day activities (or what they used to be) and how they have been affected, because that is the type of information on which evidence will be lead if an employment tribunal claim is raised and the employer does not agree that the employee meets the definition of "disabled" for the purposes of the EqA. It is also important to note at this stage that although day to day activities can cover activities undertaken at work, specialist activities which are not undertaken by the majority of people would not be considered as “day to day activities” for the purposes of the EqA. However, this does not rule out non-specialist tasks at work i.e. lifting and carrying, from "day to day activities". An example of specialist work given in the Guidance is:
“carrying out delicate work with specialised tools may be a normal working activity for a watch repairer, whereas it would not be normal for a person who is employed as a semi-skilled worker.”
Another important factor to bear in mind is that the analysis of whether an impairment has a substantial adverse effect on an employee's ability to undertake day to day tasks must be considered as if the employee is not in receipt of medical treatment. Therefore if an employee has been prescribed anti-depressants, the medication must be discounted. This requirement can often make it even trickier to assess whether an employee is potentially disabled, even for experienced medical practitioners. In our experience, employment tribunals are likely to give employees the benefit of the doubt when assessing whether they are disabled.
The EqA also provides that in order to qualify as a disability, an impairment must be long-lasting. This means that it must have lasted or be likely to last for 12 months or more. The nature of depression is such that it may recur and it may be the case that an employee suffers from depression for a few months and then their condition improves, perhaps aided by medication, only for the depression to return at a later stage. In these circumstances, is there is scope for the employee to be covered by the EqA?
Yes. The EqA states that if an impairment has had a substantial adverse effect on a person’s ability to carry out normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to recur beyond a period of 12 months.
The 2010 Guidance provides the following example:
“A young man has bipolar affective disorder, a recurring form of depression. The first episode occurred in months one and two of a 13-month period. The second episode took place in month 13. This man will satisfy the requirements of the definition in respect of the meaning of long-term, because the adverse effects have recurred beyond 12 months after the first occurrence and are therefore treated as having continued for the whole period (in this case, a period of 13 months).”
A further example provided in the 2010 Guidance is:
“A woman has two discrete episodes of depression within a ten-month period. In month one she loses her job and has a period of depression lasting six weeks. In month nine she suffers a bereavement and has a further episode of depression lasting eight weeks. Even though she has experienced two episodes of depression she will not be covered by the Act. This is because, as at this stage, the effects of her impairment have not yet lasted more than 12 months after the first occurrence, and there is no evidence that these episodes are part of an underlying condition of depression which is likely to recur beyond the 12-month period.”
Seek specialist advice
It can therefore be a tricky exercise to establish whether an employee will be protected by the EqA, and specialist advice should be sought if it is believed that an employee may be covered. As a matter of best practice, employers should seek medical advice before they take any action and in the event that matters come before an Employment Judge, an employer may be criticised if they have not sought expert medical advice before proceeding. In terms of reasonable adjustments which may be made, this might include more regular breaks, reassigning duties, providing additional resources or equipment, providing workplace counselling and so on. These might well be sufficient to rehabilitate an employee or, at the very least, to make sure that the employee's condition does not deteriorate further because they are worried about their work performance and job security.
For more information see our article on When is depression a disability?
The guidance on matters to be taken into account in determining questions relating to the definition of disability can be found here.