Although it is more than 25 years since the introduction of the Disability Discrimination Act, a number of fundamental points continue to be the subject of argument and litigation. In this Employer’s Question, Rustom Tata looks at the recent decision in Elliott v Dorset County Council.
The Claimant, Mr Elliott, was a Geographical Information Systems Manager and had worked for the Council between 1984 and 2018. He argued that he was disabled at the time when he was subjected to disciplinary proceedings in respect of how he recorded his working hours. At a Preliminary Hearing the Employment Tribunal sought to decide whether or not Mr Elliott was disabled.
Q: What was the case about?
Unless the individual has one of the conditions which means they are deemed to be ‘disabled’ at the point of diagnosis, they must satisfy the Tribunal that they have a physical or mental impairment, and that this impairment has a substantial and long term adverse effect on their ability to carry out normal day to day activities.
Q: What does an individual have to show in order to be considered disabled under the legislation?
The statutory wording is well settled, but what this case focussed on was the issue of what is ‘substantial’, and how that is to be assessed. In this case the Employment Appeal Tribunal criticised the decision of the Employment Tribunal. In the Employment Tribunal, despite accepting the medical evidence and what the Claimant described as the impact of the condition on him, the decision was reached that the impact was not substantial. The Employment Tribunal emphasised that substantial meant more than minor or trivial.
Q: But isn’t this quite a well established legal test?
It is important when considering the issue of the impact of the condition, that the focus is placed on those activities that the individual cannot do, or which they find more difficult due to their condition. In this case the Employment Tribunal’s reasoning seemed to have focussed overly on what the individual could do.
Q: What else did the case decide?
While no new legal principles have been created, the case highlights the importance for employers of ensuring that clear medical evidence is obtained wherever possible, and where appropriate for clear challenges to be made if it is not accepted that the employee did encounter particular difficulties in carrying out day to day activities at work.
Q: What are the points that employers should bear in mind as a result of this case?