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The Employment Appeal Tribunal confirms the correct approach to determining the substantial adverse effect of an employee’s disability
Mr Elliott was a Geographical Information Systems Manager for Dorset County Council for more than 34 years.
His new line manager brought disciplinary proceedings against him. During those proceedings, Mr Elliott’s union representative suggested he consider obtaining a referral to establish whether he was on the autistic spectrum. An independent assessor, to whom Mr Elliott was referred with low mood and anxiety, also decided he should be assessed to determine if he had autism spectrum condition.
In July 2018, the Council proposed restructuring. Mr Elliott said he accepted redundancy because “there was an agreement that the disciplinary proceedings would be discontinued and he could leave the employment of [the Council] with redundancy and notice pay”.
In 2019, Mr Elliott was diagnosed with an autism spectrum disorder and Asperger’s Syndrome.
Mr Elliott brought claims of unfair dismissal and disability discrimination against the Council.
The Equality Act 2010 defines disability as a “physical or mental impairment” which has a “substantial and long-term adverse effect” on a person’s “ability to carry out normal day-to-day activities”.
An Employment Tribunal Judge found that Mr Elliott was not disabled within the meaning of the Equality Act at the material times. Mr Elliott appealed and the case went to the Employment Appeal Tribunal (EAT).
The EAT considered the statutory definition of “substantial”, which is “more than minor or trivial”. If the impairment is deemed to have more than minor or trivial adverse effect on the person’s ability to perform day-to-day activities then that is likely to be the end of the matter. If the impact of the impairment is unclear, then further guidance may be considered.
The EAT explained that the focus of the “substantial” adverse effect test was on the things that the person either cannot do, or can only do with difficulty, rather than on the things that the person can do.
The EAT remitted to a new Tribunal the question of whether Mr Elliott was disabled.