Can an employee establish disability if activities adversely affected by erroneous belief about the condition?

In the case of Miles v Driver and Vehicle Standards Agency the Employment Appeal Tribunal ("EAT") considered the relevance of a decision by an individual to refrain from undertaking certain activities due to a medical condition when assessing if that individual may be disabled.

To establish disability, an employee must have a physical or mental condition that has a substantial, adverse impact on their ability to carry out day to day activities. The employer accepted that the employee's chronic kidney disease was a physical impairment. During the Covid-19 pandemic, the employee had decided to not attend work due to his belief that a kidney disease placed him at increased risk. In the recent case of Da Silva Prima v Carl Room Restaurants Limited the EAT confirmed that a decision to refrain from an activity could be caused by a physical impairment if for example:

"the complainant was following sound medical advice that indulging in the activity would, indeed, risk or cause some harmful exacerbation or reaction of their condition."

At the initial hearing the Employment Tribunal accepted that the employee reasonably believed that attending work could harm his health, placing weight on his clinical vulnerability and the sparsity of information concerning the risks of Covid-19 at that time. However, when considering whether the employee was a disabled person the Employment Tribunal described his belief that attending work was too risky due to his disease as "unreasonable." As such the Employment Tribunal decided that the Claimant's decision to refrain from attending work was not based on his physical impairment and thus he was not disabled. Unfortunately, the Employment Tribunal did not explain why the belief was unreasonable and this comment conflicted with the earlier finding that it was reasonable.

In upholding the employee's appeal, the EAT confirmed that a reasonable decision to refrain from a day to day activity like work, was relevant when assessing whether a physical impairment is a disability. As the Employment Tribunal had not explained why the Claimant's decision to refrain from work was unreasonable the employee's appeal succeeded. The case will be remitted back to the same Employment Tribunal to decide whether the employee is a disabled person.

Health and Safety detriments

The employee also claimed that he had suffered detriments for raising health and safety concerns. An employer can defend such a claim where a health and safety representative is based at the employee's place of work. The employee was based at an office that only employed five staff. A safety representative had been appointed for the office but not at the office. The employee argued that the representative needed to be based at the office. The EAT agreed with the original Tribunal that the safety representative did not need to be based at the employee's place of work. They pointed out that the employer has many sites, with only five employees based at the employee's office, and thus requiring a safety representative at each site for the employer's defence would be disproportionate. As such this claim failed.

Summary

When considering if an individual may have a disability covered by the Equality Act 2010, the activities that an individual can't physically undertake, obviously carry greater weight than any they can undertake but have decided to refrain from. Nonetheless, this case is a helpful reminder of the relevance that a decision to refrain from undertaking certain activities may have. 

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