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| | In this article, Liz Atkins looks at the current position in respect of disability discrimination looking at recent cases allowing employers to appraise the legal position as it currently affects them and their workforce.
Discrimination on the grounds of disability is unlawful by virtue of section 5 of the Disability Discrimination Act 1995 (‘DDA’).
The definition of ‘disability’ is contained in section 1(1) of the DDA 1995:-
“A person has a disability if he has a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day to day activities”.
Paragraph 4 of schedule 1 to the DDA states those activities which must be affected if a person is to fall within the definition of disability.
In the case of Goodwin -v- The Patent Office [1998] The Times, 11 November 1998, it was held that the Employment Tribunal should have regard to four different elements in respect of the definition of disability.
These are:-
- impairment
- adverse effect
- substantiality
- the long term effect
In the recent case of Leonard –v- Southern Derbyshire Chamber of Commerce [2001] IRLR 19, the EAT held that the complainant was disabled by reason of clinical depression. The correct approach to be used in assessing whether an individual is disabled is:
- The tribunal should not take examples of what the applicant could do and weigh them against what they can’t do.
- The tribunal should focus on what the applicant cannot do as opposed to what they can do, thereby avoiding the inappropriate conclusion that the adverse impact is unsubstantial as the applicant can still do a number of things.
- Regarding mental impairment, attention should be paid to paragraphs C6 and C7 of the secretary of state’s guidance.
[Ekpe –v- Commissioner of Police of the Metropolis [2001] IRLR 605]
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