Under UK employment law, someone is defined as disabled if they have a mental or physical health issue which:

• makes it difficult for them to carry normal daily activities which will usually include their normal day to day activities at work
• has more than a minor or trivial adverse effect
• lasts, or is likely to last, over a period of 12 months or more.

The legal definition of a workplace disability is:

“a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on [their] ability to do normal daily activities.”

But what counts as ‘normal daily activities’ in the workplace?

In addition to looking at how an employee’s day to day activities at home might be affected, how their condition is impacting on their ability to carry out their normal daily work activities should be considered.

Examples include:

• remembering information
• following instructions
• concentrating
• interacting with colleagues
• movement-based activity
• using a phone or computer

Be aware that a mental disability could cause a physical impairment. For example, difficulty in going outdoors could be due to a learning disability.

A physical disability could also cause a mental impairment. The pain (physical disability) of recurrent, severe migraines, for instance, could contribute to a difficulty to concentrate (mental impairment) that prevents a worker from completing work to deadlines.

Highly specialised activities tend not to be regarded as normal day-to-day activities for most people, for example, delicate watch repair with specialised tools.

This can be a grey area, though. For example, we might not consider lifting heavy loads of 25kg to be a normal daily activity. But in the Employment Appeal Tribunal Banaszczyk v Booker Ltd, the judge concluded that lifting loads of that weight is a normal activity for many UK workers.

This would mean that the dismissal of a worker for incapacity, because a long-term back condition means they can no longer lift heavy weights, without first exploring reasonable adjustments and alternatives to dismissal, could be viewed as discrimination.

So, what conditions might be classified as a disability?

Depending on the extent to which they affect an employee’s capacity to carry out normal activity, any of the following illnesses and conditions might class as a disability:

• problems with sight or hearing
• conditions which affect certain organs such as heart disease, asthma, and strokes
• learning disabilities
• learning difficulties such as dyslexia and dyspraxia
• autistic spectrum disorders
• mental health conditions – for example, depression, schizophrenia, bipolar affective disorders, eating disorders, obsessive compulsive disorder
• impairments due to injury to the body or brain
• conditions where the effects vary over time or come in episodes such as osteoarthritis, rheumatoid arthritis, fibromyalgia and ME
• progressive conditions such as motor neurone disease, muscular dystrophy and forms of dementia.

However, each case will need to be looked at individually and some employees may have several conditions that could potentially be disabilities.

Disability and treatment or correction measures

If someone is receiving treatment, or measures are in place to help correct the impairment, the impact of the disability, without the treatment or measures in place, is what should be considered when assessing the disability.

For example, if a person needs a hearing aid and can then hear without much difficulty you would assess the impact their hearing had on their ability to carry out day to day activity by looking at how they were affected if they did not use their hearing aid.

What conditions automatically count as a disability?

Regardless of the extent to which the condition impacts on their capacity to carry out their work, employees are automatically protected against discrimination from the day they are diagnosed with:

• cancer
• HIV
• multiple sclerosis
•  

What conditions never count as a disability?

The following conditions are specifically excluded from being considered impairments under the Equality Act:

• alcoholism or substance addiction or dependency
• hay fever
• behaviours including such as a tendency to set fires, steal or a tendency towards violence or sexual abuse of others, exhibitionism, voyeurism.

Managing an employee with a disability

If an employee has a disability that is having an impact on them at work, it should be discussed whether there are any reasonable adjustments that can put in place to assist them in carrying out their job and if necessary seek medical advice on what can be done to assist.

What counts as a reasonable adjustment?

Reasonable adjustments are changes that a business can make to ensure the employee is able to do their job effectively, without causing damage or interruption to a business.

There are many ways to make a reasonable adjustment for an employee, depending on the type or severity of their disability, including:

• Making access to the building easier for someone who has trouble walking, e.g. a ramp for wheelchair users.
• Changing the equipment they use, e.g. providing a special keyboard for someone with arthritis.
• Offering flexible hours to those that are stressed or get tired easily due to a physical or mental disability.
• Letting the employee work from home, e.g. if they suffer from anxiety or find it difficult getting to the office because of their disability.
• Visually showing an employee how to perform a task.

The size of a business will be taken into account when determining how reasonable an adjustment is. Larger businesses would be expected to be able to do much more for disabled staff, including things that a small business couldn’t realistically afford to do while trying to run a viable business.

Disability discrimination in the workplace

Disability discrimination at work can be both direct and indirect.

Direct disability discrimination is when an employee is treated less favourably to others on account of their disability, a perceived disability or their association with someone who is disabled.

Indirect discrimination occurs when a disabled employee is disadvantaged by a workplace practice, such as redundancy or recruitment.

Employers are responsible for ensuring that their employees do not fall victim to either type of disability discrimination in the workplace.

When to watch for workplace disability discrimination

It’s important to be especially careful that an employee, or potential employee, is not discriminated against on disability grounds in any of the following scenarios:

• determining pay or promotion, e.g. paying a disabled employee less than equivalent colleagues, or overlooking them for promotion
• terms and conditions, e.g. having policies that disadvantage anyone with a disability
• sickness absence, e.g. dismissing them for absences due to their disability
• training and development
• dismissal, e.g. dismissal because their disability is impacting their ability to do their job without considering reasonable adjustments.
• redundancy, e.g. putting a disabled employee through a competitive selection process without taking account of the impact their disability may have on the criteria and making adjustments.

Do stress, depression and anxiety count as disabilities?

In some circumstances, stress, depression or anxiety may be deemed a disability.

To be considered a disability, the condition would need to be having a substantial and long-term negative effect on the employee’s ability to carry out their job. This means that each case needs to be assessed individually.

A person who suffers from a short reactive period of depression following a bereavement is unlikely to fit the requirement of having a condition that has lasted, or is likely to last, 12 months or more.

However, in the employment context, it’s important not to assume that a mental health condition would not be classed as a disability. This is because there’s a possibility that an employee may have had a condition for years without it previously having any impact on their employment. 

Is obesity considered a disability under employment law?

Several recent court cases would indicate that obesity itself is not considered a disability.

However, an impairment resulting from obesity that causes long-term incapacity in the workplace might be considered a disability by an employment tribunal.

What if an employee hasn't told their employer they are disabled?

Sometimes it’s not immediately obvious or outwardly visible that someone is disabled.

That’s why when an employee’s performance drops, an employer should suggest a meeting to discuss the issue and see if they have had any problems. Hopefully, an employee will confined in their employer at this stage, so that adjustments can be made.

Employers need to be cautious not to jump to conclusions about the reasons for an employee’s poor performance without investigating properly first.

How should a long-term absence be managed if it's suspected it’s related to a disability?

The most important thing here is communication.

Ideally, an employer will have kept an appropriate level of contact with the employee leading up to the 4 week mark where an absence is classed as long-term. These conversations should help to establish whether the absence is related to a disability.

Should an employee be off for 4 or more weeks, with little chance of imminent return despite offers to make reasonable adjustments, it may be appropriate to begin your formal absence procedure. This will usually involve seeking medical advice. 

If you’re still unsure about what constitutes a disability in the workplace, or just need some advice, we can help. Talking through your situation with a qualified HR professional will help you to make sure you take the correct action.