The legal parameters
In order to be afforded protection against disability discrimination under the Equality Act 2010 ("the Act") a claimant must meet the section 6 definition of disability which sets out that:
"A person has a disability if [they] have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on [their] ability to carry out normal day-to-day activities."
Facts
Mr Stedman made an application to the Respondent, who run caravan and leisure parks, for employment as an Animation Host which was not ultimately successful. He made a claim to the Employment Tribunal of disability discrimination in relation to the Respondent's handling of his application. The question of whether he was disabled for the purposes of the Act was disputed by the Respondent and therefore considered by the Employment Tribunal as a preliminary issue.
Mr Stedman was diagnosed with autism and ADHD. Evidence taken into account in considering whether Mr Stedman was disabled for the purposes of the Equality Act included Mr Stedman's Impact Statement, a letter from his GP regarding a referral for an autism assessment, an extract from Mr Stedman's GP notes and a report from a psychiatrist confirming a diagnosis of Adult ADHD and also confirming a diagnosis of autism.
Preliminary hearing
The Employment Judge decided Mr Stedman did not have a disability within the meaning of section 6 of the Act. It was determined that although Mr Stedman had a mental impairment, it did not have a substantial adverse effect on his ability to carry out normal day-to-day activities. Mr Stedman appealed the Tribunal decision.
The Employment Appeal Tribunal ("the EAT")
In considering whether someone has a disability within the meaning of section 6 of the Act it is key to remember the following legal principles:
(i) it is sufficient if the claimant has a mental or physical impairment that has a substantial (more than minor or trivial) adverse effect on just one day-to-day activity;
(ii) the Tribunal must not weigh what a claimant cannot do against what they can do, either with reference to a single activity or generally in relation to all day-to-day activities; and,
(iii) in judging whether the adverse effect is substantial, the comparison is between the claimant as they are and as they hypothetically would be without the impairment.
The EAT found the Tribunal had made a number of errors when applying these principles and that the decision that Mr Stedman was not disabled was perverse on the basis of the facts it found and for the reasons it gave.
The EAT made obiter comments that a diagnosis of autism or ADHD is not to be regarded only as constituting the "impairment" for the purposes of section 6. The diagnosis reflects a clinician's opinion as to the extent to which that individual's functioning differs to the "norm" and accordingly is also a relevant factor for the Tribunal to take into account when considering whether the impairment has a "substantial adverse effect".
The case has been remitted to a fresh Tribunal to determine whether Mr Stedman is disabled for the purpose of the Act.
Comment
Navigating the path to a neurodivergent diagnosis can be complex, often marked by long wait times of months or even years. In the context of Employment Tribunals, medical evidence is not just helpful but can provide essential clarity which is harder to gain when considering so-called “hidden disabilities”. It provides the necessary foundation to support disability discrimination claims and is likely to be vital in supporting a case.
The EAT's findings in the current case provide a useful outline of the key principles which should be considered when determining whether someone meets the definition of disability under section 6 of the Act. The obiter comments also contain a useful guide as to the importance of a diagnosis on whether the impairment has a "substantial adverse effect".
It is worth flagging that employers cannot be liable for certain disability discrimination claims unless they knew or should have known about the disability. This can be problematic when employees have "hidden disabilities" and may not themselves be fully aware of their neurodivergence. It is key to note that employers can still be liable if they should have known about the disability – an employer which ignores clear signs of a disability will not avoid claims.
Improved understanding around neurodivergence benefits all. Supporting a neurodivergent workforce isn’t just about compliance, it’s about creating an environment where diverse minds can thrive. By recognising the barriers to diagnosis, valuing lived experience, and prioritising reasonable adjustments backed by medical evidence, employers can foster inclusion, unlock potential, and build a workplace that works for everyone. Training of managers and the wider workforce is essential.
If you need any assistance with regard to the issues raised in this legal update please do not hesitate to get in touch.
