Should disabled employees modify their behaviours?

A disability is a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. Substantial is more than minor or trivial.  All good so far. But practically, what happens if an employee takes their own steps to accommodate their disability which means that it has less than a substantial impact on their ability to carry out day-to-day tasks? Are they still disabled and so protected from discrimination?

Headline

An individual is expected to reasonably modify their behaviour to prevent or reduce the effect their impairment is having on their day-to-day activities. These modifications may mean they no longer meet the definition of disability under the EqA2010 as there is no substantial, adverse effect. However, that same individual would not be expected to avoid certain activities so as to reduce the impact of their impairment.   

Case information

Some of the headline facts from this case; Ms Brown started her employment with GVS in April 2018. She had a shoulder condition which caused her much pain, and this condition was exacerbated by repetitive tasks. She had an operation in February 2019, returning to reduced hours at work in April 2019. The judgment suggests that evidence as to the success of the operation is ‘sketchy’ although it’s accepted that she continued to struggle to use the mouse on her return to work. Her response was to switch to other tasks. Later that year in July 2019, she was dismissed and bought a disability discrimination claim. Her initial claim was rejected by the tribunal in a preliminary hearing; it concluded that her shoulder injury had only had a substantial adverse effect on her normal day-to-day activities for the five months from November 2018 until April 2019 (her return date after her operation) and not after her return. Ms Brown appealed to the EAT. She said that the tribunal should have first, asked whether the activity at issue i.e. her using her mouse, was a normal day-to-day activity and second, whether her approach to using the mouse on her return i.e. switching to other tasks, was a coping mechanism or avoidance. 

Learning points

This latter issue is the essential learning point from this case. The answer is found not in the EqA2010 but rather in the Government guidance here. 

Section B7 notes that when assessing the substantial adverse effect of a potential disability on day-to-day activities, account should be taken of how far that person can reasonably be expected to modify their behaviour so that their physical or mental impairment no longer has a substantial adverse effect on their day-to-day activities. Reasonable modifications are expected. Let’s take my knees as an example! I have knee pain and it is particularly painful when lifting weights in the gym or walking down stairs. I must modify and sometimes avoid those activities. It does not affect my ability to shop, travel to work or sit at my desk and carry out my job. Therefore, it is unlikely my knee pain would be a disability; I can modify my actions to avoid a substantial adverse effect on my day-to-day activities. 

Contrast that with B9 of the guidance. Where individuals go further than modifying their behaviour (perhaps because there are no successful modifications) and avoid doing certain things, the guidance notes state ‘it would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person’. Back to my creaky knees! If my knee pain meant that walking downstairs and sitting down for long periods of time was too painful and I avoided both, always using lifts or working at home to avoid stairs and standing up regularly to work, my impairment would have a substantial adverse effect on my day-to-day activities. Applying that back to Ms Brown, if her switching tasks so she avoided using the mouse was avoidance, then her shoulder injury could be considered a disability. The matter has gone back to a new tribunal to consider.

Where does that leave us?

• When addressing disability, we can often tend to focus on whether an impairment meets the ‘long term’ aspect of the definition. Do not forget 1) that it must have a substantial effect on day-to-day activities, and 2) the individual will be reasonably expected to make modifications
• Reasonable is obviously going to be dependent on circumstances and degree in each scenario – tread respectfully when assessing levels of modifying behaviour in a way that ensures the individual feels heard and their impairment acknowledged
• Be aware coping strategies may break down under certain circumstances; an employee with dyslexia who has coping strategies may be unable to use those when stressed. Consequently, their impairment may continue to have a substantial adverse effect.
• An individual may have an impairment which means they can carry out day-to-day activities but they struggle with symptoms such as pain or fatigue when doing so. This may mean they are unable to repeat the task for a long period of time. This would be deemed a substantial adverse effect.
• We have condensed this case into a comment piece but always be aware of the complexity of disability definitions and issues; seek specific advice be that from legal advice or input from occupational health professionals

For more information on this topic, please contact Anna Dabek or Libby Hubbard.

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