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Is Everyone Disabled under the Equality Act? - Dr Mark Burgin

12/09/19. Dr Mark Burgin BM BCh (oxon) MRCGP considers issues in the legal definition of disability as thresholds appear to change with courts’ interpretations of the law.

The Equality Act states that “substantial” means more than minor or trivial but this may not concord with public’s idea of a substantial adverse effect on day to day activities.

Another area of confusion is where a person can perform day to day activities but would not if the treatment was stopped they are considered to be disabled.

The public may accept that an amputee is disabled if they do not have their prosthesis but may find it difficult to understand why those with chronic medical conditions are disabled.

Hypothetical disability is where the person can carry out normal activities but would not be able to if a hypothetical situation was to occur.

Mild v substantial

Mild functional restrictions are present in a high proportion of the population for instance due to developmental issues and the effects of ageing.

When impairments have little or no effect it is straight forward to say that they are minor or trivial but where the person must make adjustments, they are at least mild.

The public would expect that substantial means moderate or severe problems that would restrict or prevent the person from achieving activities even with adjustments.

The idea that a person could be disabled but still be able to carry out normal activities without any other restriction than the adjustment seems misguided.

Narrow functional restrictions

Many impairments only impact a small number of normal day to day activities or only a small part of those activities, so have limited impact on the person’s life (e.g. fear of spiders).

Substantial restriction in a narrow area may be hypothetical if the person alters their life so that they can avoid the activity and then are able to continue with their life unimpeded.

This conflict between identifying impairments that could be disabling and starting with disability and looking for associated impairments causes concerns about independence.

The public is rightly worried when disability analysts appear to ignore an issue that the tribunal considers to be material leading to reversal of a decision.

Effects of treatment

Where a drug completely controls the associated impairments from that illness it is unclear that a person should be considered disabled.

Many patients with e.g. mental health problems are working and would relapse if they did not take their medication so would appear to be disabled from 5(1).

Reasonable adjustments might include not being rude to these people, giving written instructions rather than face to face or even not having meetings if socially anxious.

If workplaces were made more mental health friendly all workers might benefit or the restrictions which are reasonable individually may together become too restrictive.

Conclusions

I recommend that mild restrictions (those where the person can continue without restrictions after adjustments) are not considered to be disabilities under the Equality Act.

The area of restricted function should be sufficiently broad to impact upon a normal life so that the disability is not hypothetical but has a real and significant effect on their life.

Where workers are likely to suffer from impairments due to high frequency in the population, workplaces should make reasonable adjustments even if they are unaware of a need.

This means disabled access, risk assessment for MSK and mental health, roles for older persons and those recovering from illness or injury.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

Equality Act 2010

c. 1 part 2 6 Disability (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.

c. 15 Part 16 Interpretation Section 212 “substantial” means more than minor or trivial;

Effect of medical treatment 5(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if— (a) measures are being taken to treat or correct it, and (b) but for that, it would be likely to have that effect. (2) “Measures” includes, in particular, medical treatment and the use of a prosthesis or other aid.

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