Disability discrimination – what is a disability?

Posted: 05/03/2025

The question of ‘what is a disability?’ is often contested in Employment Tribunal (ET) claims, and has recently been examined by the Employment Appeal Tribunal (EAT) in the case of Mrs Alcian Roofe-Stewart v MacIntyre Care. In this case the EAT considered whether the ET had properly taken into account the application of the Equality Act 2010 in circumstances where the claimant suffered from a condition that had periods of dormancy. 

Increasingly, employers are facing claims of disability discrimination (which include direct and indirect disability discrimination, discrimination arising from a disability, and a failure to make reasonable adjustments). It is well publicised that, before the Covid-19 pandemic, rates of mental illness in England were steadily rising and the number of individuals seeking treatment for such conditions was rising at a much faster rate than the number of people estimated to have mental illnesses. A similar trend can be seen in relation to physical disabilities. 

Section 6 of the Equality Act 2010 defines a disability as a ‘physical or mental impairment that has a substantial and long term effect on an individual’s ability to carry out normal day to day activities’. It further states that an effect will be long term where it is likely to last 12 months or more (or has lasted for 12 months or more). 

The case

The claimant, who suffered from mixed connective tissue disorder (which both parties accepted), claimed unfair dismissal and disability discrimination following her dismissal by her employer as a result of her refusal to undertake Covid testing. She gave evidence through a disability impact statement that the condition led to her facing difficulties in walking, standing to prepare a meal, normal household work and daily shopping due to pain in her knees. 

During her employment the claimant had been subject to three occupational health (OH) assessments and the medical view in each of these varied, with a suggestion that her symptoms fluctuated and that she had long periods (in some cases a couple of years) without the need for any medication, and confirmation that when she was not experiencing a flare up there was a minimal effect on her function. 

While there was clear evidence that the condition had a significant effect on the claimant in 2015 (the time of the first OH assessment), the question for the ET to determine was whether or not this was the case at the time of her dismissal in 2021, and whether the significant effects were likely to recur. The claimant was invited to produce medical evidence to the ET; however, she sought to rely on a letter from May 2020 which the ET considered did not support her contention that her condition was having a substantial adverse effect on her day-to-day activities. As a result, the ET found that the claimant was not disabled for the purposes of the act and dismissed her claim. 

The claimant appealed to the EAT on the basis that the ET had not considered that she may have been discriminated against because of a past disability. The EAT was persuaded that, on the facts available to the ET and those accepted by both parties, the claimant could have been disabled for the purposes of the act in 2015; however, she did not succeed with this element of her appeal on the basis that the case she had advanced was that her condition was a disability at the time of her dismissal, rather than a past disability. 

The claimant also argued that the ET had failed to consider whether her condition had a substantial adverse effect and, in particular, whether it had properly considered the fluctuating nature of her condition and whether it was likely to recur. In essence she argued that her condition was chronic, and it was accepted that at the relevant time she still had the condition. The key question for the EAT was whether or not the ET had properly considered whether the substantial adverse effect was likely to recur. 

The ET had found that her condition had been dormant since 2017; however, there was nothing to suggest that the condition had gone away, and the claimant’s position was that the risk of flare-ups remained ever present regardless of the condition being quiescent for a period of time. The EAT was not content that the ET had properly considered whether the substantial adverse effect could recur and therefore upheld her appeal on this ground. The matter was remitted to the ET with a particular recommendation for the need for medical evidence regarding the potential for the condition to recur. 

This case highlights that, even where an employee’s condition has not had a substantial adverse effect for a long period, the individual may still meet the statutory definition of disability, and the employer and the ET need to have regard to the likelihood of a recurrence. The case also serves as a reminder that employers facing disability discrimination claims can challenge the individual’s assertion that they are disabled, but that this can be difficult to do successfully. The importance of both sides obtaining strong and relevant medical evidence to support their case cannot be overstated.

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