Appendix - The meaning of disability

1 This Appendix is included to explain who has the protected characteristic of disability under the Act in the areas covered by this Code.

2 A person has a disability if they have a physical or mental impairment, which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities (s.6(1)).

However, special rules apply to people with some conditions such as progressive conditions (read paragraph 24) and some people are automatically deemed disabled for the purposes of the Act (read paragraph 21).

3 People who have had a disability under the definition in the Act are protected from discrimination and harassment even if they have since recovered, although those with past disabilities are not covered in relation to Part 12 (transport) and section 190 (improvements to let dwelling houses) (s.6(4)).

4 It covers physical or mental impairments. This includes sensory impairments, such as those affecting sight or hearing (s.6(1)).

5 The term ‘mental impairment’ is intended to cover a wide range of impairments relating to mental functioning, including learning disabilities.

6 There is no need for a person to establish a medically diagnosed cause for their impairment. What it is important to consider is the effect of the impairment, not the cause [footnote 85].

7 A substantial adverse effect is something which is more than a minor or trivial effect (s.212). If the impairment has a more than minor or trivial effect on the abilities of the person compared to those they would have without the impairment, then the effect is substantial [footnote 86].

8 When considering whether an effect is more than minor or trivial, account should be taken of, for example: the time taken to undertake an activity; the overall effect of an impairment where the condition impacts on lots of activities; the effect of more than one impairment; and whether a person avoids doing things which, for example, cause pain, fatigue or substantial social embarrassment, or because of a loss of energy and motivation.

9 An impairment may not directly prevent someone from carrying out one or more normal day-to-day activities, but it may still have a substantial adverse long-term effect on how he or she carries out those activities. For example, where an impairment causes pain or fatigue in performing normal day-to-day activities, the person may have the capacity to do something but suffer pain in doing so, or the impairment might make the activity more than usually fatiguing so that the person might not be able to repeat the task over a sustained period of time.

10 The effect of an impairment may be direct or indirect. As long as there is a causal link between the impairment and its effect, it does not matter that there is an intermediate step between the two [footnote 87].

12 A long-term effect of an impairment is one:

• which has lasted at least 12 months, or
• where the total period for which it lasts is likely to be at least 12 months, or
• which is likely to last for the rest of the life of the person affected (Sch. 1 para 2(1))

Effects which are not long-term would therefore include loss of mobility due to a broken limb which is likely to heal within 12 months, and the effects of temporary infections, from which a person would be likely to recover within 12 months.

13 If an impairment has had a substantial adverse effect on normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to recur (Sch. 1 para 2(2)). If an adverse effect recurs episodically, this may indicate that a further episode could happen, although that will not always be the case. So, for example, where a particular event causes an adverse effect, and that event is unlikely to continue or recur, the adverse effect may be unlikely to recur [footnote 88].

14 They are activities which are carried out by most people on a regular and frequent basis.

15 Day-to-day activities include - but are not limited to - activities such as walking, driving, using public transport, cooking, eating, lifting and carrying everyday objects, typing, writing (and taking exams), going to the toilet, talking, listening to conversations or music, reading, taking part in normal social interaction or forming social relationships, nourishing and caring for one’s self.

16 Normal day-to-day activities also include any activity which relates to a person’s effective participation in working life, such as a job interview [footnote 89]. When considering a particular activity, it should be defined broadly [footnote 90]. For example, day-to-day activities in working life can include standing for long periods [footnote 91] or lifting and moving heavy items [footnote 92].

18 Someone with an impairment may be receiving medical treatment or taking other measures which alleviate or remove the effects (though not the impairment). In such cases, the treatment or other measures are ignored and the impairment is taken to have the effect it would have had without such treatment or other measures (Sch. 1 para 5(1)). This does not apply if substantial adverse effects are not likely to recur even if the treatment or other measures stop (that is, the impairment has been cured following treatment).

19 No. The only exception to the rule about ignoring the effects of treatment or other measures is the wearing of spectacles or contact lenses. In this case, the effect while the person is wearing spectacles or contact lenses should be considered (Sch. 1 para 5(3)).

20 People with severe disfigurements are covered by the Act. They do not need to demonstrate that the impairment has a substantial adverse effect on their ability to carry out normal day-to-day activities. However, they do need to meet the long-term requirement (Sch. 1 para 3(1)).

21 Anyone who has HIV, cancer or multiple sclerosis is automatically treated as disabled under the Act (Sch. 1 para 6(1)). In some circumstances, people who have a sight impairment are automatically treated as disabled under Regulations made under the Act (Disability Regulations 2010, SI 2010/212, reg 7).

22 Long Covid is a new illness which arose during the Covid-19 pandemic. Long covid can last anywhere between a few months and a few years and the effects can be constant or fluctuating. Symptoms vary and may include fatigue, nausea, and respiratory symptoms.

23 Long Covid symptoms may have a long term, substantial effect which could fall within the definition of disability in the Act. The courts will look at symptoms on a case-by-case basis. It will be for Claimants to demonstrate that their impairment satisfies the legal test.

24 Progressive conditions are conditions which are likely to change and develop over time. People with progressive conditions will be taken to have an impairment which has a substantial adverse effect, before it actually has that effect, if:

• they have a progressive condition
• their condition results in an impairment which has (or had) an effect on their ability to carry out normal day-to-day activities
• the effect is not (or was not) yet a substantial adverse effect, and
• the condition is likely to result in them having an impairment which has a substantial adverse effect (Sch. 1 para 8)

Individuals will be covered by the Act in these circumstances, provided that the effect meets the long-term requirement of the definition.

25 Menopause symptoms can be serious and can have a substantial and long-term adverse effect on a woman’s ability to carry out normal day-to-day activities. In these circumstances, menopause symptoms can fall under the definition of disability in the Act, but it will be for Claimants to demonstrate that their impairment satisfies the legal test.

For other women, menopause symptoms can be easily managed, without much impact on their day-to-day life. In these cases, menopause symptoms are unlikely to fall under the definition of disability in the Act.

85. J v DLA Piper UK [2010] IRLR 936
86. Elliott v Dorset City Council [2021] IRLR 880
87. Sussex Partnership NHS Foundation Trust v Norris [2012] EqLR 1068
88. Sullivan v Bury Street Capital Ltd [2021] EWCA Civ 1694
89. Sobhi v Commissioner of the Police of the Metropolis [2013] EqLR 785
90. Banaszczyk v Booker [2016] IRLR 273
91. Aderemi v London and South Eastern Railway Ltd [2013] EqLR 198
92. Banaszczyk v Booker [2016] IRLR 273