Tribunal considers whether a condition has a “substantial adverse effect”

To be disabled under the Equality Act 2010, an employee has to prove they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. The employment tribunal have considered whether a mental condition had a “substantial” adverse effect on the employee. In Olukanni v John Lewis plc, the claimant worked as a selling assistant. She alleged she suffered from a disability which had features of semantic pragmatic disorder; a form of communication disorder. The claimant produced an impact statement that explained her condition as:

  • She would take things too literally so could miss the context or point of what was being said. As a result, she would become anxious frequently;
  • She was more sensitive than the average person;
  • She could react too quickly and would not take sufficient time to process what she is told;
  • She liked routine and would find it very hard to adapt if she was asked to do something new, or asked to do it in a new way, and she would become anxious;

A medical assessment was carried out. This found that the claimant had social communication difficulties and difficulties in retaining information so would struggle to follow complex oral instructions. The assessment found that these difficulties would have a significant adverse effect on the claimant’s abilities to carry out new activities; where she was familiar with the activity, she could use strategies to support herself. The employer gave evidence that the role of Selling Assistant remained the same across all departments on a day-to-day basis, although training was sometimes required for new products. In their experience, the claimant had no problem following instructions and had sometimes asked her line manager to repeat and clarify instructions, but other non-disabled members of staff did this too. The claimant brought a claim of a failure to make reasonable adjustments. The employment tribunal found that the claimant did have a mental impairment, however, this did not have a substantial adverse effect on her normal day to day activities, only on her ability to carry out new activities. The claimant was unable to provide examples of an adverse effect on her normal day to day activities; the effect of having to ask for instructions to be repeated was common among non-disabled staff. As she could not satisfy the “substantial adverse effect” test, she was not disabled. The claimant appealed to the Employment Appeal Tribunal but her appeal was dismissed. What this means for employers:

  • Although based on its individual facts, this case is a reminder that an employee’s mental or physical condition has to meet all the requirements in the statutory definition of disability to receive the protection of the Equality Act 2010.
  • Where this position is uncertain, employers should meet with the employee and discuss their condition. They should cover every aspect of the disability test in this discussion i.e. do they have a mental condition? Is this long-term? Does it have a substantial adverse effect on normal day-to-day activities?
  • Expert medical opinion, such as an Occupational Health report, will also help employers make the consideration of whether the employee is protected under the Equality Act or not.
  • Regardless of the legal duty, employers can choose to make reasonable adjustments to non-disabled employee’s roles to ensure they are able to work effectively in the business. This may limit the risk of an employee taking the business to tribunal to get a binding indication of whether they are classed as disabled or not.

Suggested Resources