What is the definition of a disability for the purposes of employment discrimination? The tribunal set out in Section 6 of the Equality Act 2010 that a person has a disability if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day to day activities. An impairment might not have substantial adverse effect on a person’s ability to undertake a particular day to day task in isolation.
However, it is important to consider cumulative effects of an impairment rather than look at task in isolation. Account should also be taken of where a person avoids doing things which for example, cause pain, fatigue, or substantial social embarrassment or where a person avoids doing things because of loss of energy and motivation. It would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person. Each case depends upon its own particular facts and there can be factual disputes as to what a claimant asserts, they can and cannot do.
What is meant by LONG-TERM adverse effects on ability to carry out day to day tasks? The effect of an impairment is long-term if it has lasted for at least 12 months, it is likely to last 12 months or is likely to last for the life of the person affected.
What does the tribunal class as day to day activities ? These are activities that people carry out on a regular or daily basis and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks such as cleaning, travelling by various forms of transport and taking part in social activities.
Will a tribunal carry out a balancing exercise of tasks that can and cannot be done when determining whether the claimant has a disability? No the tribunal most focus on what cannot be done by the claimant, In Ahmed v Metroline Travel Ltd the Judge set out the importance of not carrying out a balancing exercise.
Can menopause symptoms amount to a disability? Yes, if there is evidence of menopausal symptoms such as insomnia, fatigue, low mood, irritability, anxiety, memory loss confusion, headaches poor concentration etc along with evidence in the impact statement of adverse effect on the ability to carry out day to day tasks such as but not limited to forgetting to attend events, meetings and appointments or avoiding them, losing personal possessions, forgetting to do things like put the handbrake on the car, forgetting to lock it, leaving the cooker and iron on and or leaving the house unlocked etc.
Will the tribunal consider medical notes when looking at the issue of disability? Yes, the Tribunal will look whether the impact statement is supported by the medical records and occupational health records of the claimant.
What must an employment tribunal find for an employment discrimination claim to succeed? To succeed a tribunal must find that on the balance of probabilities, you received less favourable treatment at work due to a protected characteristic.
What are protected characteristics for the purpose of employment law? Age, Disability (a physical or mental impairment which has a substantial and long-term adverse effect on someone’s ability to carry out normal day-to-day activities), Gender reassignment, Marriage and civil partnership, Pregnancy and maternity, Race (includes colour, nationality and ethnic or national origins), Religion or belief (or lack of religion), Sex or Sexual orientation.
What is a bastard defence? This is a defence which sets out that the employee was not discriminated against. No one was singled out and all employees are treated just as badly in the particular place of work by the person complained about. This defence will often be put forward in a discrimination cases.
If the Employment tribunal finds I have been discriminated against what will I be awarded ? an employment tribunal can award you compensation for injury to feelings as well as for your financial losses. Financial loss such as loss of earnings cover loss up to when you’re likely to get a new job if you’ve lost your job. Compensation for the upset, hurt and distress the discrimination has caused you is calculated using Vento Guidelines. Tribunals use Vento guidelines to decide how much they should award for injury to feelings. The Vento guidelines are split into three bands depending on how serious the tribunal considers the injury to feelings to be. Lower band between £900 and £9,100, Middle Band between £9,100 and £27,400 and Upper Band between £27,400 to £45,600.