In Sussex Partnership NHS Foundation Trust v Norris, the EAT held that a life-long condition which made the Claimant more prone to infections was not a 'disability' under the Equality Act 2010.

Background

A person is 'disabled' for the purposes of the Equality Act 2010 where they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect their ability to carry out normal day-to-day activities'. (Section 6(1) Equality Act 2010)

The Claimant brought a claim for disability discrimination, alleging that an offer of employment made by the Respondent (conditional on receipt of satisfactory references) was withdrawn because one of her referees had referred to her alleged disability.

The question for the EAT was whether the Claimant was disabled within the meaning of section 6(1) above.

The Claimant was diagnosed with Selective IgA Deficiency, a defect of the immune system which did not in itself have any effect on her ability to carry out normal day-today-activities. However it made her more susceptible to infections, which had led to occasional periods of sickness absence. It was agreed that the Claimant had a physical impairment within the definition of section 6(1) Equality Act 2010. The Respondent denied however that she was a disabled person within the meaning of section 6.

Decision

The EAT found that the Claimant was not disabled. It accepted that, for the purposes of section 6 above, the substantial adverse effect could be caused by the increased infections rather than the Selective IgA Deficiency itself. However, there was still a requirement that the increased infections would themselves have a substantial adverse effect. It found that the Tribunal had come to the wrong conclusion in finding that the Claimant's impairment was substantial and adverse to her ability to carry out day to day activities. This is because the evidence established that, whilst the Selective IgA Deficiency increased susceptibility to infection, the increased rate of infection did not itself have a substantial and adverse effect on her ability to carry out normal day-to-day activities.

The EAT also found that the fact that the Selective IgA Deficiency was life-long was not sufficient to establish that any substantial adverse effect was likely to recur. The Claimant had one period between July 2007 and November 2007 when her impairment had a substantial adverse effect on her ability to carry out normal day-to-day activities but the Claimant could give no examples of her impairment having the effects suffered in 2007 in the years thereafter.

Comment

This is a useful reminder of the requirement to consider, in each case, whether the facts and relevant medical evidence in relation to the impairment satisfy each limb of the test under section 6, namely:

  • Does the person have a physical or mental impairment?
  • Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?
  • Is that effect substantial?
  • Is that effect long-term?