It is only necessary to establish ‘an impairment’ and its effect, not its cause, says the EAT 

In Walker v Sita Information Networking Computing Ltd the EAT (Employment Appeals Tribunal) had to determine whether an ET (employment tribunal) was right to rule that an obese employee was not disabled because there was no identifiable cause for the number of different medical conditions that he was suffering from.

Case

To come within the definition of being disabled, employees have to show they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Walker weighed 21.5 stones. He suffered from 16 medical conditions compounded by obesity, including asthma, diabetes, high blood pressure, chronic fatigue syndrome, bowel problems, anxiety and depression, and joint pains. Medical opinion determined that he had a chronic permanent condition which affected his daily living; there was no identifiable cause for the wide range of medical problems he was experiencing, but his emotions played a significant part. 

Tribunal

The employer accepted that all Walker’s symptoms were genuine, but argued that his disability discrimination claim should be rejected because he was not disabled.  Given the medical evidence, Walker failed to meet the first part of the definition of a disabled person because he could not show that he had a physical or mental impairment. Walker argued that this was the wrong approach and the tribunal should consider his condition as a whole. 

The employment tribunal agreed with the employer. Walker did not come within the definition of disability because:

• No mental or physical cause for his symptoms had been identified
• His condition was being aggravated by what is known as a “functional overlay” in medical terms (in other words, when emotional reaction worsens or prolongs symptoms of an existing condition). 

EAT

The Employment Appeal Tribunal upheld Walker’s appeal. The evidence demonstrated that he suffered from a number of physical and mental medical conditions, causing significant difficulty in his day-to-day life, which did not have a single recognisable cause. However, the law does not require a focus on the cause of an impairment, and neither does the statutory guidance on the meaning of disability, as it states that it is not necessary to establish how an impairment is caused. The first question, therefore, is: does the individual have an impairment? Clearly Walker did. On any view, he was substantially impaired, had been for a long time, and there could be no conclusion other than he was disabled.

Comment

This case emphasises the need for employers to refer to ‘matters to be taken into account in determining questions relating to the definition of disability’ in the statutory guidance when deciding if a person is disabled. Paragraph A3 states that the term ‘mental or physical impairment’ should be given its ordinary meaning. Paragraph A8 clarifies that it is not necessary to consider how an impairment is caused; what is important is to consider the effect. The clear message is that the purpose of the definition of disability is not to confine impairments to only those which can be given a medical label – it is the nature of the impairment that counts.

The EAT also made an important observation about obesity and disability. The EAT did not accept that obesity itself means that a person is disabled but commented that it may, depending on the evidence, make it more likely that someone comes within the definition of disability. For example, where impairments such as diabetes, depression, joint pain and so on, as a consequence of obesity, have a substantial effect on a person’s life. If faced with such situations, employers should:

• Read the statutory guidance;
• Establish whether the person has an impairment (remembering that identifying  the cause is not necessary); and
• Consider the impact of the effects on normal day-to-day activities to determine whether they are substantial and long-term (in other words, have lasted, or are likely to last, for 12 months).

Source: Javaid, M. (2013) Can Obesity be a Disability? People Management.