Disability: adverse effect on day-to-day activities

In this decision, the Employment Appeal Tribunal (EAT) has considered whether an employee’s own coping mechanisms meant that her conditions had an adverse effect on her day-to-day activities, for the purposes of establishing a disability under the Equality Act 2010.

Primaz v Carl Room Restaurants t/a McDonald’s Restaurants Ltd and others EA-2020-000110 and EA-2020-000278

Facts

The claimant brought a claim against her employer for disability discrimination. The employment tribunal had to make a preliminary determination on the question of whether, at the relevant time, she was disabled within the meaning of the Equality Act 2010. It concluded that the claimant was not disabled on the basis of an earlier brain tumour, which had been removed and was not on her records as being cancer. However, it was satisfied that she was disabled due to other conditions related to the brain tumour, including epilepsy and vitiligo.

The claimant took various measures to avoid certain triggers for her epilepsy, such as coffee, alcohol and chemicals in cleaning products and cosmetics. She also adopted other self-prescribed avoidance measures in respect of her vitiligo. There was no medical evidence for taking these avoidance measures, and the claimant was acting contrary to medical advice in refusing to take prescribed medication.

The tribunal considered that the claimant’s avoidance behaviours resulted in a “restricted, Spartan lifestyle”, which together with her symptoms and numerous medical appointments meant that there was a substantial adverse effect on her ability to do normal day-to-day activities. Both parties appealed the tribunal’s decision to the EAT.

EAT decision

The EAT upheld the employer’s appeal. The tribunal had been wrong to focus on the adverse effects of the claimant’s own coping mechanisms. The question of whether an impairment has an adverse effect on a person’s ability to carry out normal day-to-day activities was an objective one, and should not be determined by their subjective beliefs about how to manage their conditions. The tribunal should have considered the impact of the claimant’s conditions on her day to day activities, leaving aside the impact of her avoidance behaviours. The case was remitted to be reheard by another tribunal.

Consequences of this decision

The EAT expressed the view that this point and an individual’s avoidance behaviours had not been previously considered before. It means that tribunals must be careful to focus on the impact of an individual’s condition on their daily life, separately to the behaviours adopted by the individual as a mechanism to cope with their condition. This will not always be easy in practice to achieve. If there is medical evidence for adopting certain behaviours, and an individual is following medical advice, this will be taken into account by the tribunal when considering the impact on day-to-day activities.

These articles are from the December 2021 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact a member of Birketts’ Employment Team.