1/ Elliott v Dorset CC - In a case in which an EJ was found to err in finding E failed to show substantial adverse effect & thus not disabled notwithstanding his Aspergers diagnosis, HHJ Tayler makes a number of important points of determining disability. #ukemplaw
2/ The case concerned an information systems manager disciplined for false recording of timings, & who accepted redundancy on a representation that to do so would stop the disciplinary process. He explained an array of effects of his impairment:
3/ The EJ found these impairments not substantial. The EJ's judgment erred in focusing on what E could do rather than what he couldn't, compared E's abilities to the general population rather than to himself without the impairment, & failed to tackle the meaning of substantial.
4/ HHJ Tayler made a number of delightfully clear and useful statements that those representing those claiming disability discrimination will doubtless want to keep in their back pockets.
5/ 1st, that whilst it's fine to consider each element of the disability definition in disaggregated form, it's important to maintain an overview & to recognise that overview's assistance (often necessity) to providing context to determine the other elements.
6/ 2nd, the need to focus on what the purportedly disabled person cannot do rather than what they can or than conducting a balancing exercise between what they can and can't do.
7/ 3rd, when determining an impairment's effect, the need to compare the disabled person with themselves absent the impairment rather than to people at large. If E would do something better without his impairment it doesn't matter that he's still better at it than others.
8/ Thus it wasn't relevant that E found public speaking difficult in much the same way as other non-disabled people do. The question was whether E's impairment had a substantial adverse effect on how he found public speaking.
9/ 4th, the importance of focusing on the statutory definition of substantial as 'more than minor or trivial' & recognising that where the guidance adds a gloss to that wording it is the statutory wording that should win in respect of any inconsistency.
10/ Hence where the guidance speaks of disability as a limitation going beyond the normal differences in ability which may exist among people, that should be read in light of the statutory wording with its focus on the difference the impairment makes to the individual.
11/ 5th, an ET ought not find a coping or avoidance strategy undermines substantial adverse effect unless the strategy will always succeed in avoiding the effect & won't break down, for example, when placed under stress. Para B7 of the EqA Guidance shouldn't be read without B8-10
12/ Additionally, a coping strategy involving avoiding doing normal day-to-day activities which would otherwise be substantially adversely affected by the impairment will not be likely to take the person outside of the definition of disability.
13/ So lots and lots of excellent quotable stuff in another very good HHJ Tayler judgment. For those of you who have reached the end of the thread, here's the link: assets.publishing.service.gov.uk/media/60702815…
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