The law says that a person has a disability if they have a physical (or mental) impairment that has “a substantial and long-term adverse effect” on their ability to carry out normal day-to-day activities and is likely to last at least 12 months. In Brown v General Vending Services Ltd, the EAT held that tribunals must also take the legal guidance into account when considering the distinction between a “coping strategy and an avoidance strategy”.
Basic facts
Ms Brown suffered from a shoulder impairment which required surgery in February 2019. Up until that point, she had been able to vary the way she worked to minimise the effects of typing or using a mouse. Over the next few months, both her surgeon and a clinical practitioner recorded that her shoulder, whilst stiff, was greatly improved. She agreed that her pain levels had reduced, except when she used the mouse. However, she was able to modify her behaviour to lessen the effect.
After her dismissal in July 2019, her surgeon wrote a letter stating that she still had “some disability and must take things easy. This disability could last for a year from the date of surgery”. In August 2020, Ms Brown had another consultation at which she said that aggravating factors included cleaning, washing-up, hoovering, ironing and brushing her hair.
Ms Brown lodged tribunal proceedings claiming that she had been a disabled person at the time of her dismissal and that her shoulder injury had a substantial adverse effect on her daily activities.
Tribunal decision
Although the tribunal judge accepted that Ms Brown had a physical impairment, she was not convinced that she had a disability at the time of her dismissal, not least because she found that the evidence after she was dismissed was inconsistent with the evidence before it. In particular, she found that the consultant’s July 2019 letter which referred to “stiffness as amounting to a disability” was inconsistent with his previous opinion that the operation had gone well.
The judge, therefore, concluded that the adverse impact suffered by Ms Brown on normal day-to-day activities had only lasted for five months - from November 2018 to April 2019. As the impairment did not have a substantial adverse effect, was not long term and was not likely to last for 12 months, she could not claim to have been disabled when she was dismissed.
Ms Brown appealed, arguing (among other things) that the tribunal judge should not have attached so little weight to the consultant’s July 2019 letter. She also argued that the judge should have made a factual finding about (1) whether using a computer with a mouse was a normal day-to-day activity and (2) whether modifying her behaviour at work was a coping strategy (unlikely to be a disability) or an avoidance strategy (likely to constitute a disability), as set out in the guidance to the Equality Act 2010.
EAT decision
Upholding the appeal, the appeal judge agreed that when assessing the importance of the July 2019 letter, the tribunal judge should have considered the likelihood that a surgeon would knowingly state an opinion which was contrary to his actual view.
He also upheld the second ground on the basis that the tribunal judge had failed to set out clear findings as to whether Ms Brown had adopted a coping or an avoidance strategy to deal with the adverse impact of her shoulder impairment. In particular, the judge had failed to take the relevant guidance into account when determining questions relevant to the definition of disability and the distinction between a coping strategy and an avoidance strategy.
The EAT, therefore, remitted these issues to be determined by a different tribunal.
Comment
In order to assist with interpreting the definition of disability under the Equality Act 2010, statutory guidance was also issued. Although “Guidance on matters to be taken into account in determining questions relevant to the definition of disability” does not impose any legal obligations in itself, nor is it an authoritative statement of the law, tribunals are entitled to take it into account when deciding cases and will normally do so.
