What constitutes disability

In some instances it is very clear when someone has a disability, it can be physically very obvious, but the legal definition of disability, when it comes to employment law, often creates difficulties and uncertainty. This is a difficult balance as is the case with many areas of law because the definition needs to be wide enough to cover situations which are less than obvious – many disabilities are not clear cut, they can include many mental health issues such as depression or intermittent issues such as repetitive strain injury or irritable bowel syndrome to name but a few.

The employment law definition of disability is that a disability, in law, is a condition which has a degree of permanence and which creates a significant impairment or problem for the sufferer on a day to day basis. Where there is a disability, the employer is under a legal duty to make reasonable adjustments to assist the disabled employee. This of itself is a difficulty, firstly the employer should liaise with an employee who may have a disability, in terms of medical advice and ascertaining the legal position. Reasonable adjustments are also dependent upon the size and resources of an employer under employment law. The same obligation is not generally required of a very small employer as of a very big company, although if practical and non-expensive options are available such as perhaps flexibility in working hours or perhaps buying a certain kind of chair which is inexpensive, the small employer cannot simply use the proportionality argument to say that they can’t do anything.

Employers also need to be very conscious of the employment right of disabled people not to be discriminated against in the recruitment process itself. It is entirely possible to face an employment tribunal claim even if you have not taken on someone as an employee, so it’s best to take legal advice on your recruitment process.

This page does not deal with the many other ways in which disability is defined in law, such as right to benefits or other rights now enshrined in the Equality Act. these will be the subject of separate posts on this site.