315: Autism and disability discrimination

Under the Equality Act 2010, a disability is defined as a physical or mental impairment which has a substantial and long-term adverse effect on the ability to carry out day-to-day activities (section 6). The term ‘substantial’ is defined as ‘more than minor or trivial’ (section 212). In Elliott v Dorset County Council, the EAT has recently allowed an appeal against an Employment Tribunal’s finding that an employee was not disabled because the effects of his autism were not substantial.

Disciplinary proceedings were brought against Mr Elliott by a new line manager who alleged that he had falsely inflated the number of hours he had worked. Mr Elliott responded that his former line manager had agreed that he could record working hours of 9 to 5, irrespective of the exact hours he worked, because he often worked late at night at home, and in total worked considerably more than his contracted hours. During the disciplinary proceedings, Mr Elliott’s union representative suggested that he obtain an autism assessment because of some of the characteristics he was displaying when trying to deal with the problems with his new manager. Mr Elliott was subsequently diagnosed with Autistic Spectrum Disorder and Asperger’s Syndrome. In the meantime, he was made redundant in a departmental restructuring and the disciplinary proceedings were discontinued.

Mr Elliott subsequently brought claims of disability discrimination, alleging that because of his autism and Asperger’s Syndrome, he had found it very difficult to deal with changes in procedure and to communicate with his new line manager. However, at a preliminary hearing, the Employment Tribunal ruled that Mr Elliott was not disabled because any adverse impact of his condition was minor, and his ability to carry out a range of day-to-day activities was not substantially adversely affected.

On appeal, the EAT held that the Tribunal had adopted the wrong approach when applying the statutory definition of a disability. The Tribunal judge had not sufficiently identified the day-to-day activities, including work activities, which Mr Elliott could not do, or could only do with difficulty. For example, she had only considered public speaking and socialising, but not the other impairments which had been raised in evidence, such as difficulty in coping with changes to procedures, and in communicating with managers. The judge had also focused excessively on Mr Elliott’s coping strategies, without considering whether those strategies might break down in certain circumstances. In addition, when looking at whether the adverse effects of his impairment were substantial, the judge had relied excessively on comparing Mr Elliott with the general population, rather than simply applying the statutory definition of substantial as ‘more than minor or trivial’. The medical evidence had suggested an impairment that was more than minor or trivial. Accordingly, the question of whether Mr Elliott was disabled was remitted to be reconsidered by a new Tribunal.

This judgment is a reminder that the threshold for an impairment having a ‘substantial’ effect is low: it only has to be more than minor or trivial. The EAT emphasised that where a statutory definition is clear, as with the definition of ‘substantial’, there is no need to consult the Equality Act guidance or the EHRC Employment Statutory Code of Practice. It is also worth noting that a Tribunal’s focus should be on the day-to-day activities which the claimant cannot do or can only do with difficulty, not on the activities they can do.