As has been the case for a while now, employees with disabilities are protected in law in terms of their employment. The relevant provisions are now found in the Equality Act 2010 (EqA). As a result of that protection, employers cannot treat a disabled employee less favourably because of their disability or for a reason relating to their disability. In addition, employers are under a duty to implement what is commonly known as reasonable adjustments to the workplace and/or to the role being undertaken, if the disability in question places the employee at a substantial disadvantage in comparison to their non-disabled colleagues.
Of course not every type of illness or condition will result in an employee being categorised as disabled. Whether an employee is protected under the Equality Act 2010 will depend on the extent of the impairment and the effect it has on the employee. In order to qualify as a disability, the impairment must have a substantial adverse effect on the employee’s ability to carry out day to day activities. The impact cannot therefore be trivial.
But what are these “day to day activities”?
Under the former regime of the Disability Discrimination Act 1995, an impairment was said to affect the ability of the person to carry out normal day-to-day activities only if it affected one of the following:
- manual dexterity;
- physical co-ordination;
- ability to lift, carry or otherwise move everyday objects;
- speech, hearing or eyesight;
- memory or ability to concentrate, learn or understand;
- perception of the risk of physical danger.
However this list of capacities has not been replicated in the EqA. There has been a suggestion that this omission might make it easier to establish disability, however the test largely remains the same and there has been very little change in approach by Employment Tribunals.
Are you covered by the Equality Act?
So if it is the case that you have are suffering from depression, or suspect you are suffering from depression, and want to obtain some of the protection afforded by the Act, you might want to consider first whether or not you are likely to be covered by it.
Has your ability to remember, concentrate learn or understand been affected? Have you been forgetful? Have you been able to follow instructions? Have you been taking a longer time to carry out your tasks when compared with your colleagues (or compared with how you used to be before you started feeling unwell)?
Think about specific examples of what you do day to day so that if you are asked by your employer to attend an Occupational Health practitioner, you will give relevant examples.
Examples quoted in the previous guidance included whether an individual was able to watch and follow a television programme or read a book. A guidance document to accompany the EqA has also been published by the Government, “Guidance on matters to be taken into account in determining questions relating to the definition of disability.” (see link below and, in particular, the Appendix).
However, think about your normal day to day activities (or what they used to be) and how they have been affected, because that is what you will have to lead evidence about if you ever reach a stage of enforcing your rights in an Employment Tribunal. If you have been finding those types of activity increasingly difficult, then it is likely that that you will meet the first part of the criteria for protection.
It is also important to note at this stage that although day to day activities can encompass activities undertaken at work, specialist activities which are not undertaken by the majority of people would not be considered as “day to day activities” for the purposes of the EqA. An example given in the Guidance is “carrying out delicate work with specialised tools may be a normal working activity for a watch repairer, whereas it would not be normal for a person who is employed as a semi-skilled worker.”
Another very important factor to bear in mind is that the analysis of whether an impairment has a substantial adverse effect on your ability to undertake day to day tasks must be considered as if you have not been in receipt of medical treatment. Therefore if you have been prescribed anti-depressants, the medication must be discounted. This requirement can often make it even trickier to assess whether an employee is potentially disabled, even for experienced medical practitioners. In our experience, Employment Tribunals are likely to give employees the benefit of the doubt when assessing whether they are disabled.
The EqA also provides that in order to qualify as a disability, an impairment must be long-lasting. This means that it must have lasted or be likely to last for 12 months or more. The nature of depression is such that it may recur and it may be the case that you suffer from depression for a few months and then your condition improves, perhaps aided by medication, only for the depression to return at a later stage. In these circumstances, would you be covered by the EqA?
The EqA states that if an impairment has had a substantial adverse effect on a person’s ability to carry out normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to recur beyond a period of 12 months.
The 2010 Guidance provides the following example:-
“A young man has bipolar affective disorder, a recurring form of depression. The first episode occurred in months one and two of a 13-month period. The second episode took place in month 13. This man will satisfy the requirements of the definition in respect of the meaning of long-term, because the adverse effects have recurred beyond 12 months after the first occurrence and are therefore treated as having continued for the whole period (in this case, a period of 13 months).”
A further example provided in the 2010 Guidance is:-
“A woman has two discrete episodes of depression within a ten-month period. In month one she loses her job and has a period of depression lasting six weeks. In month nine she suffers a bereavement and has a further episode of depression lasting eight weeks. Even though she has experienced two episodes of depression she will not be covered by the Act. This is because, as at this stage, the effects of her impairment have not yet lasted more than 12 months after the first occurrence, and there is no evidence that these episodes are part of an underlying condition of depression which is likely to recur beyond the 12-month period.”
Seek specialist advice
It can therefore be a tricky exercise to establish whether you will be afforded the protection of the Equality Act, and specialist advice should be sought if you think that you may be covered. As a matter of best practice, employers should seek medical advice before they take any action and in the event that matters come before an Employment Judge, an employer may be criticised if they have not sought expert medical advice before proceeding. That should give you some comfort, although clearly not all employers follow best practice all of the time.
In terms of the protection you might be allowed, reasonable adjustments might include more regular breaks, reassigning duties, providing additional resources or equipment, providing workplace counselling and so on. These might well be sufficient to rehabilitate you or, at the very least, to make sure that your condition does not deteriorate further because you are worried about how you are doing your job.
The Guidance on matters to be taken into account in determining questions relating to the definition of disability can be found here.