EAT (HHJ Tayler), UKEAT/0197/20, [2021] IRLR 880, 9 April 2021

This is a case in which the EAT ruled that a tribunal had erred in deciding that the claimant, who had a diagnosis of Asperger’s Syndrome, was not disabled for the purposes of the EqA. It is an important reminder of the relatively modest threshold imposed by the statutory requirement that an impairment be “substantial”, as well as of the correct approach to the identification of disability for the purpose of the Equality Act 2010.

It was not disputed that the impact of the claimant’s condition on him included “unflinching honesty; difficulty processing other people’s emotions; struggling to assimilate verbal/non-verbal communication; difficulty with back and forth conversation; finding it difficult to cope with changes of plan; black and white thinking, and taking people very literally; and, procedural compliance and dislike for any digression from rules, established policy or procedures.” The tribunal had found that, “in each instance where the claimant may find matters harder and … whilst on occasions he may be obsessive and he may need a routine and that he does adapt his behaviour and adopt coping strategies, any adverse impact upon him is minor” and that “the claimant[‘]s ability to carry out a range of day-to-day activities whilst clearly affected from time to time was not at any time substantially adversely affected… the adverse impact on Mr Elliott was no more than minor”. The EAT ruled that the fact that the claimant was able to carry out activities did not mean that his ability to carry them out was not impaired, further that it was wrong to balance the things that a claimant could and could not to in assessing disability; if a claimant’s abilities were impaired more than trivially by comparison with those s/he would have had absent the impairment, the requirement for substantial condition was satisfied. In reaching this conclusion the EAT referred to the decision of the EAT in Goodwin v Patent Office (1998) EAT/57/98,  [1999] ICR 302 §22, Ahmed v Metroline Travel Ltd ((2011) UKEAT/0400/10, per Cox J) and Paterson v Commissioner of Police of the Metropolis (2007) UKEAT/0635/06, [2007] ICR 1522 §68, per Elias J.

Judge Tayler charted the history of the requirement that the effect of an impairment be “substantial” at §§27-54, referring at §28 to the “subtle, and important” point made by Langstaff P in Aderemi v London South East Railway Ltd (2012) UKEAT/0316/12, [2013] ICR 591 §14 that “the Act itself does not create a spectrum running smoothly from those matters which are clearly of substantial effect to those matters which are clearly trivial but provides for a bifurcation: unless a matter can be classified as within the heading “trivial” or “insubstantial”, it must be treated as substantial. There is therefore little room for any form of sliding scale between one and the other.” Judge Taylor stated at §§31-32 that the “requirement to consider the Guidance or Code applies only where the tribunal considers them relevant” and that in view of the statutory definition of the word “substantial” as “more than minor or trivial” and the ordinary nature of the words “minor” and “trivial” the Code and Guidance were likely to have limited relevance (citing in support HHJ Hand QC in Taylor v Ladbrokes Betting and Gaming Ltd (2016) UKEAT/0353/15, [2017] IRLR 312 §16 and Vicary v British Telecommunications plc (1999) EAT/1297/98, [1999] IRLR 680 §11 per Morison J). Judge Tayler approached the apparent suggestion in §B1 of the Guidance and App 1 §8 of the Code that “substantial” meant “going beyond the normal differences in ability which may exist among people” (emphasis added) with caution, suggesting at §38 that “there are differences in ability amongst people who are not disabled that are much more than minor or trivial, particularly if the word ‘people’ includes the whole population of the UK” and citing Paterson as authority on “how to apply the ‘substantial condition’ to a person who is a high achiever”. There Elias J had ruled at §27 that “the comparison is not with the population at large… what is required is to compare the difference between the way in which the individual in fact carries out the activity in question and how he would carry it out if not impaired” and at §70 that “It would surely be no answer and would be wholly inconsistent with the purposes of the legislation, simply to say that [“someone who has all the skills to be a highly successful accountant, but lacks manual dexterity [which] … may require that he or she should be given longer to do the relevant examinations”] was not disadvantaged when compared with the population at large and therefore no obligation to make the adjustment arose.”

Judge Tayler also referred to Paterson as indicating “the correct approach to be adopted to normal workplace activities” (§52), Elias J there ruling at §67 that “day-to-day activities’ must be defined so as to encompass “the activities which are relevant to participation in professional life”.

Judge Tayler went on to point out at §56 that Schedule 1 para 5 EqA states that “(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if— (a) measures are being taken to treat or correct it, and (b) but for that, it would be likely to have that effect” (emphasis added). He pointed out at §56 that the title of that provision, “Effect of medical treatment”, was misleading, as the provision referred to “measures” rather than “medical treatment”, and went on at §57 to rule that “In certain circumstances, changes of behaviour that prevent an impairment having a substantial adverse effect might be considered as being ‘measures’ that should be disregarded for the purposes of deciding whether a person has a disability”. At §58 Judge Tayler suggested that inadequate attention was often paid to the second paragraph of para B7, as well as to paras B8–B10 of the Guidance which “significantly modif[y]” the general guidance set out in the first paragraph of B7 (which suggests that reasonable coping or avoidance strategies which “might alter the effects of the impairment to the extent that they are no longer substantial” would have the effect that “the person would no longer meet the definition of disability”. That paragraph and the subsequent paragraphs go on to state however that it would not be reasonable:

• “to expect the person to give up, or modify, more normal activities that might exacerbate the symptoms; such as shopping, or using public transport  … [or]
• to conclude that a person who avoids “doing things which, for example, cause pain, fatigue or substantial social embarrassment, or … because of a loss of energy and motivation … was not a disabled person”.

Judge Tayler also stressed that “If it is possible that a person’s ability to manage the effects of an impairment will break down so that effects will sometimes still occur, this possibility must be taken into account when assessing the effects of the impairment.” He went on to conclude that the tribunal had erred in its assessment of the impact on the claimant of his Asperger’s Syndrome by failing to consider the range of day-to-day activities the impairment affected and, in particular, the difficulties in accepting changes in processes and communications which (§75) “resulted in him leaving the employment of the Respondent”. The tribunal judge had focused on what the claimant could, rather than could not, do and, to the extent that she had considered that some day-to-day activities were adversely affected, had failed to consider whether those adverse effects are more than minor or trivial, absent any coping strategies. Insofar as she did consider the claimant’s coping strategies she appeared to compare the claimant with other people, rather than with himself were he not disabled. Nor did she appear to have regard to the “clear statement in the Guidance that, if coping strategies break down in certain circumstances, such as when under stress, the fact they may prevent an impairment having a substantial adverse effect in other situations, does not mean that a person is not disabled”.

The question whether the claimant was disabled was remitted for reconsideration by a fresh tribunal.

Claimant: Geraint Probert, instructed by Porter Dodson Solicitors

Respondent: Stephen Wyeth, instructed by Dorset Council Legal & Democratic Services