The claimant was a police community support officer. Her application to become a police constable revealed that she had had a conviction 17 years previously which she had not disclosed. Her application was refused and several months later she received a disciplinary reprimand, to stay on her file for five years, for failure to disclose the conviction both then and when she had applied for her original position as a community support officer. Seven months later when she tried again to become a police constable she was refused because of this reprimand.
She brought a disability discrimination claim relating to the reprimand and the refusal of her application, on the basis that her failure to disclose was due to dissociative amnesia. The Tribunal found that she was not disabled and so could not bring her claim but, on appeal, the EAT decided that although the loss of memory was limited to just one aspect of her past, it nevertheless met the statutory test of having a "substantial adverse long-term effect on the ability to carry out normal day-to-day activities". It affected any activity which required her to recall whether she had any previous convictions and one of those activities was applying to become a police constable. Therefore, the condition did have an effect on an activity which related to her "full and effective participation in professional life on an equal basis with other workers". In coming to this decision, somewhat reluctantly, the EAT was heavily influenced by the European Court's recent rulings that the emphasis is on whether the employee is disabled "from work".
It has always been the case that the disability definition test is not a particularly onerous test for a claimant to satisfy but this decision does confirm that the definition has shifted to the effect of the disability on the employee's ability to work and that the "normal day-to-day activities" test may now be misleading. The EAT noted that the official guidance on the disability definition may now be out of date on this aspect.