In the recent case of Stedman v Haven Leisure Ltd, the Employment Appeal Tribunal (EAT) has provided useful guidance that will assist HR professionals (and lawyers) when assessing whether or not a medical condition has a substantial adverse effect on someone’s ability to carry out day-to-day activities.
Background
Mr Stedman applied for a position as an Animation Host at Haven Leisure Ltd, which operates caravan holiday and leisure parks across the UK. His application was unsuccessful, and he later brought claims of disability discrimination based on how his application was handled. He alleged direct and indirect disability discrimination, discrimination arising from disability, and a failure to make reasonable adjustments, citing his diagnoses of autism and ADHD.
The Employment Tribunal
As all of Mr Stedman’s claims were predicated on him having a disability, a preliminary hearing was scheduled in the Employment Tribunal to ascertain whether his autism and/or ADHD met the definition of a disability under the Equality Act 2010.
Whilst Mr Stedman did have autism and ADHD, the definition of a disability required the conditions to have a substantial adverse impact on his ability to carry out normal day to day activities. Mr Stedman argued the conditions impacted his ability to shop without shopping lists, difficulty forming friendships and dealing with breakups, and he avoided public transport when it was overcrowded.
The Tribunal found that there was no clear evidence that this caused a significant impact on his ability to carry out everyday activities. The Employment Tribunal held that any challenges he experienced (shopping without a list, dealing with breakups, forming friendships) were comparable to those faced by individuals without a disability. It also observed that he appeared to be social and may have exaggerated his difficulties with reading, writing, and concentration, particularly given that he had recently completed a degree in Business Studies and had been a high achiever at school.
Mr Stedman appealed to the EAT on the grounds that the Tribunal had failed to properly consider whether his autism and ADHD were having a substantial adverse effect of his daily activities.
The EAT
In assessing whether Mr Stedman’s impairment had a substantial impact on his ability to carry out normal day to day activities, the EAT found that the original Tribunal had overlooked several key principles:
- Employment tribunals should not weigh what a person can do against what they can’t do.
- To constitute a disability, it is enough that the condition has a substantial adverse effect on just one day to day activity. The Tribunal had wrongly considered the adverse effects on Mr Stedman’s abilities generally, and instead it should have considered the adverse effects one by one.
- When assessing the impact the condition has on the individual, the correct comparison is between the individual’s abilities as they are with the condition vs their abilities in a hypothetical version of themselves without the condition.
- It was wrong of the Employment Tribunal to compare Mr Stedman’s abilities with someone in the general public. The example given was a professional wheelchair tennis player: If you compare their ability to play tennis vs a member of the public, you would likely conclude that (notwithstanding their mobility issue) their tennis playing ability still far exceeds a non-professional playing member of the public – but that is the wrong comparison. The correct comparison is between their ability to play tennis with the mobility condition vs their ability to play tennis without it where they would likely be even better.
Importantly, the EAT emphasised that when considering whether a condition has an impact on someone’s ability to carry out day to day activities, a diagnosis reflects a clinical opinion that someone is ‘different from the norm’ in the area of functioning covered by the diagnosis. In this case, diagnoses of autism and ADHD meant there was a clinical opinion that Mr Stedman ‘differed from the norm’ in the way he carried out some day-today activities.
The EAT determined that the Tribunal’s finding that Mr Stedman was not disabled should be overturned and reconsidered by a fresh Tribunal.
Comments
This case nicely sets out key points to be borne in mind when considering whether an employee’s condition is a disability under the Equality Act 2010. Particularly where the condition exists on a spectrum, like autism and ADHD.
Arguably the most important part of the EAT’s judgment is that a diagnosis is not only evidence that the employee has an impairment, but it is also a factor that must be taken into account when assessing whether it has a substantial (i.e. more than minor or trivial) adverse effect on their ability to carry out day-to-day activities. This could make it much easier for people with conditions that exist on a spectrum to establish that they are disabled, if a diagnosis is evidence that they have a condition and that they differ in some way to the norm, the only remaining question is whether the impact the condition has is substantial enough.
If you require any further assistance or support in matters involving an irretrievable breakdown, or any other employment related matters, please contact a member of the Employment Team.