15 March 2018

When is a disability not a disability?

3:27pm

Being ‘disabled’ is, amongst other things a legal term derived from the Equality Act 2010, which says ‘a person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities. The decision as to whether an employee has a disability is often made by Occupational Health advisers, and in some cases (Cancer, HIV, MS) is an automatic definition. Being disabled under the Equality Act confers legal protection against detrimental treatment on grounds of the disability.

Sometimes, whether or not an employee is disabled is disputed and the Employment Tribunal is asked to judge. In the recent case of Toy v Chief Constable of Leicestershire [UKEAT/0124/17/LA] the Claimant, a probationary police officer believed that he was disabled by virtue of having dyslexia. He took his employer to court for unfair dismissal claiming they had failed to take his disability into account, when dismissing him during his probationary period.

On appeal, the EAT found that the employer did not, and could not reasonably have been expected to know that the Claimant was disabled at the time of his dismissal, because the Claimant was ‘not clear or certain that he was dyslexic’. Other case law has found that employers must make meaningful enquiry into whether or not a Claimant has a disability – so this is a particularly interesting decision, although in this case the Claimant had not actually raised any suggestion of being dyslexic until the final termination process (having kept quiet during his training and work).

Written by Jo Mackie


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