New guidance on defining disability for neurodivergent individuals

A recent decision from the Employment Appeal Tribunal involving a worker diagnosed with Asperger’s syndrome offers new guidance on the correct approach to assessing whether workers with neurological impairments are protected by the Equality Act.

The claimant had worked for Dorset County Council as a geographical information systems manager for many years. The dispute arose when a new manager attempted to introduce a different time recording system. Under his previous manager, it had been agreed that he could record working hours of 9 to 5 irrespective of the hours he actually worked: on occasions he was absent during the working day but worked late in the night at home, working considerably more than his contractual hours in total.

In the course of disciplinary proceedings it emerged that the claimant found it particularly difficult to adapt to new routines, and following a referral to occupational health he was diagnosed with Asperger’s syndrome and with Autism Spectrum Disorder.

The claimant accepted his diagnosis and his employers admitted that this amounted to an impairment that had a long-term effect on his ability to perform normal day to day activities. But they disputed the final ingredient in the definition of disability for the purposes of the Equality Act – ie they argued that the effect of his impairment was not “substantial”.

The tribunal accepted the employers’ arguments at a preliminary hearing and dismissed the claim. This decision has now been overturned by the EAT, and the issue of whether the claimant is disabled remitted to a new tribunal.

So where did the original tribunal go wrong?  Four key points emerge:

Look at the definition of disability in the round: the EAT pointed out that when certain elements of the definition are admitted, it is easy for a tribunal to focus too closely on the issues in dispute and fail to stand back and look at the complete picture.

Remember that "substantial" is now defined in primary legislation: prior to the Equality Act it was left to the statutory guidance to help tribunals determine the meaning of “substantial” in this context. Now it is defined in the Act as “more than minor or trivial”. The EAT said that, if it is clear from the medical evidence that the impairment has a substantial effect on normal day to day activities, it should not be necessary to refer to the guidance at all.

The guidance can be difficult to interpret: it is at least arguable that the guidance on the definition of disability (published in 2011) does not deal as fully as it might with work-based activities, or include many examples of the typical difficulties that neurodivergent individuals face in workplace settings.

Think carefully about asking for a preliminary hearing: if disability is disputed it is common to ask for the issue to be determined at a preliminary hearing. There are obvious advantages to this, but it may not be appropriate if the impact of an impairment is subtle, and cannot easily be determined without extensive findings of fact.