Check if you're disabled under the Equality Act
The Equality Act 2010 sets out when someone is considered to be disabled and protected from discrimination. The definition is quite wide - so check it even if you don’t think you’re disabled. For example, you might be covered if you have a learning difficulty, dyslexia or autism.
The definition is set out in section 6 of the Equality Act 2010. It says you’re disabled if:
- you have a physical or mental impairment
- that impairment has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities
Some impairments are automatically treated as a disability. You’ll be covered if you have:
- cancer, including skin growths that need removing before they become cancerous
- a visual impairment - this means you’re certified as blind, severely sight impaired, sight impaired or partially sighted
- multiple sclerosis
- an HIV infection - even if you don't have any symptoms
- a severe, long-term disfigurement - for example severe facial scarring or a skin disease
These are covered in Schedule 1, Part 1 of the Equality Act 2010 and in Regulation 7 of the Equality Act 2010 (Disability) Regulations 2010.
Check if you have an impairment
You have an ‘impairment’ if your physical or mental abilities are reduced in some way compared to most people. It could be the result of a medical condition - like arthritis in your hands that means you can’t grip or carry things as well as other people.
An impairment doesn’t have to be a diagnosed medical condition. If you’re suffering from stress, you might have mental impairments - like difficulty concentrating - as well as physical impairments such as extreme tiredness and difficulty sleeping. It still has to have a substantial and long-term adverse effect on your ability to carry out day-to-day activities.
Your impairment doesn’t have to stop you doing anything, as long as it makes it harder. It might cause you pain, make things take much longer than they should or mean that you’re unable to do an activity more than once.
Jodi’s been struggling with her mental health since her partner left her a year ago. She can’t plan everyday activities like shopping or following a recipe to cook a meal. She wouldn’t get up and dressed in the mornings if her daughter didn’t encourage her. She’s stopped going out because she doesn’t want to talk to people.
Jodi has a mental impairment. It doesn’t matter whether she’s been diagnosed with a medical condition like depression - although that can help to prove she has an impairment. She'll also need to show the impairment is long-term and has a substantial adverse effect on her ability to carry out day-to-day activities.
Ahmed has Asperger’s Syndrome. He finds the world overwhelming and this causes him considerable anxiety. He also struggles to communicate and interact with other people.
Ahmed doesn’t think he’s disabled as he’s not physically impaired. However the effect of his condition means he’s unable to carry out certain normal day-to-day activities like going to the shops alone and engaging in social activities so he has an impairment.
Conditions which aren't impairments
Some conditions aren’t disabilities under the Equality Act 2010. They include:
- tattoos or piercings
- voyeurism or exhibitionism
- a tendency to set fire to things
- a tendency to steal things
- a tendency to physically or sexually abuse others
The full list is in the Equality Act 2010 (Disability) Regulations 2010.
An addiction to alcohol, nicotine or any other substance isn’t a disability.
But you might be disabled if your addiction caused an impairment. For example if you have liver disease or depression caused by alcohol dependency, that would be an impairment.
It might also be a disability if your addiction was originally caused by medical treatment or medically prescribed drugs.
Check if your impairment’s long term
A long-term effect means something that has affected you or is likely to affect you for at least a year. For example, if you had an operation that will make walking difficult for at least a year, that’s long term.
Your impairment will still be considered to be long term if the effects are likely to come and go. These are known as ‘fluctuating or recurring’ effects.
For example, you’ve had periods of depression for a few months at a time but then months in between where it doesn’t affect you. Each episode of depression lasts less than 12 months, but it can meet the definition of long term if:
- it has a substantial adverse effect when it happens, and
- it could well happen again
Your impairment will also still be considered to be long term if it’s likely to affect you for the rest of your life even if that’s going to be less than a year.
The definition of what is long term is in Schedule 1 of the Equality Act 2010.
John has epilepsy which causes him to have seizures. It has a substantial and adverse effect on his ability to carry out normal day-to-day activities, for example he can’t go out on his own because he’s likely to fall down.
His condition improves for a time but the substantial adverse effects are likely to happen again so they’re treated as if they’re continuing - this would be a long-term effect.
Check if the effect of your impairment is substantial
A substantial effect on your day-to-day activities means one that’s ‘more than minor or trivial’.
The effect on your normal day-to-day activities might be substantial if you have more than one impairment. Other examples of when the effect might be substantial include:
- taking longer with everyday tasks like getting dressed, going to the toilet or preparing meals because of pain, if you didn’t take your painkillers
- finding it difficult to go out on your own because of a phobia, physical restriction or learning disability
- being unable to concentrate on watching TV or reading a newspaper because of mental health issues
- finding it difficult to talk to people and avoiding socialising because you have Asperger’s Syndrome and can’t always understand what people mean
- having seizures which cause you to lose awareness of your surroundings
- being unable to read a book without an aid because of a learning impairment such as dyslexia
The effects might only be ‘minor or trivial’ if they have very little effect on your daily life, like if the only effect on you is that you have to stop for a few minutes' rest after walking for a mile at a normal pace.
If your condition’s getting worse
If you have a long-term condition that’s getting worse, the effect on your day-to-day activities doesn’t have to be substantial as long as it’s likely to become substantial in the future. This is called a ‘progressive condition’.
If you take medication or have treatment for your disability
The legal test is that you should look at the impact of your impairment without any medication or treatment. Treatment includes things like counselling as well as medication. For example if you have arthritis and use a walking stick, think about how hard it would be for you to walk without it.
If you have a sight impairment which can be cured by wearing glasses or contact lenses, you’ll need to think about how your day-to-day activities are affected when you’re wearing them.
Tom has type 1 diabetes. He has daily insulin injections which mean he doesn’t usually have any symptoms.
He's disabled because without the injections the diabetes would have a substantial long-term adverse effect on his normal day-to-day activities. He would collapse and the condition is likely to recur.
If you’re not sure if your impairment is substantial or long term
Get advice from your doctor or other medical professional. You could ask them to tell you:
- how long your impairment is likely to last and whether it’s likely to get worse
- what would happen if you stopped your medication or other treatment
- if there are any activities you should avoid
You doctor might also be able to help you prove you have a disability if you need to later on.
You can also try keeping a diary for a while - write down what you do, what you find difficult and why. This might make it clearer how much your impairment is affecting your normal day-to-day activities. Your friends and family might also be able to help you think of ways you’re affected.
If your employer says they don’t think you have a disability
You should explain why you think you have a disability. You'll need to explain:
- what impairment you have - if you don’t know what the impairment is, explain its effects
- why it’s long term
- what the substantial adverse effect is - without aids, medication or treatment
Then ask your employer exactly why they disagree.
If your employer disagrees, you can continue with your claim but they might still dispute that you have a disability. If you decided to take legal action, they could challenge the basis of your case by saying that you don’t meet the definition of having a disability.
The tribunal would first need to decide this issue by considering the evidence both parties have. It will listen to what you say but you might also need to show them medical evidence - like a letter from your GP or consultant.