Article by Amy Hallam of BRM Law
Protected characteristic of Disability – changes to the legal definition of a disability.
Further to our recent article where we updated you on some of the amendments to the Equality Act 2010 that came into force on 01 January 2024, we confirmed that the legal definition of disability had been extended by The Equality Act 2010 (Amendment) Regulations 2023.
The new definition includes:
References in the relevant provisions to a person’s ability to carry out normal day-to-day activities are to be taken as including references to the person’s ability to participate fully and effectively in working life on an equal basis with other workers.
What does this mean for employers?
Previously when employers were considering whether a worker is disabled within the meaning of the Equality Act 2010 and what if any reasonable adjustments should apply, they would have considered the impact of worker’s ability to carry out normal day-to-day activities under the previous guidance and drafted legislation. Commonly these included tasks like shopping, getting dressed and basic housework. In addition to this now employers will need to consider the workers ability to participate fully and effectively in working life on an equal basis with other workers. This extends the likelihood of someone being determined as a disabled person within the meaning of the legislation.
From 01 January 2024, provided a worker can show that their mental or physical impairment has a substantial and long-term adverse effect on their ability to participate in working life fully and effectively equally with other workers, it will be easier for them to establish that they are disabled. What fully and effectively means is yet to be tested in the court system however it is likely that if an employee can show that they cannot participate fully and effectively as compared to other workers without the protected characteristic of disability they will be determined to be protected under the Equality Act 2010.
In reality this is not a substantial change due to UK case law already establishing this as a consideration, however our advice to employers is to be cautious when considering whether someone is disabled as the legislation has made it easier to establish a disability. It is also often better to treat someone as though they are disabled within the meaning of the Equality Act 2010 because doing so means you are less likely to breach any of your obligations or duties under the Equality Act 2010.
If you have any questions in relation to this amendment or any employment related queries in general, please contact a member of the Employment Law Team who will be happy to assist.
Amy Hallam Head of Employment at BRM Law