Stedman v Haven Leisure Ltd Archives

How should you assess whether a neurodivergent individual has a mental impairment that has a ‘substantial adverse effect’ and meets the legal definition of disability?

The EAT in Stedman v Haven Leisure Ltd (available here) provides some useful pointers for employers.

In summary, the EAT recommends taking diagnosis into account, using a hypothetical version of themselves (without the disability) as a comparator and says that a substantial adverse effect on just one day-to-day activity is enough.

Background:

Under the Equality Act 2010, a person is considered disabled 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. ‘Substantial’ means more than minor or trivial, and “long-term” generally means the effect has lasted or is likely to last at least 12 months.

Facts: The employee applied for a job as an Animation Host with Haven Leisure Limited (Haven). He had been diagnosed with Autism Spectrum Disorder (ASD) and Attention Deficit Hyperactivity Disorder (ADHD). When Haven rejected his application, the employee brought claims of disability discrimination.

There was a preliminary hearing to determine if the employee was disabled.

Tribunal decision

The Tribunal decided that, although the employee had a mental impairment, he was not disabled within the meaning of the Equality Act 2010, as the impairment did not have a substantial adverse effect on his ability to carry out normal day-to-day activities.

This is because, for example, the employee had performed well academically – including obtaining a degree – even despite having difficulties with memory and concentration.

The employee appealed.

EAT decision

The EAT allowed the appeal (and referred the case to a fresh Tribunal to decide if the employee is disabled).

The EAT said that the Tribunal had taken the wrong approach by weighing what the employee could do against what he could not do. For example, the Tribunal should have considered whether the employee would have performed even better academically had he not had difficulties with memory and concentration, not just looked at what he had actually achieved.

The correct comparison, then, is between the person and a hypothetical version of themselves without the disability, not the person and others. To use a further example (used at the appeal) ‘if playing tennis were a day-to-day activity, a professional wheelchair tennis player with a mobility-related physical disability would satisfy the definition of disability as regards the activity of playing tennis even though their tennis-playing abilities far exceed those of an average adult because, if they did not have a mobility-related disability, they would likely play even better’.

The EAT also said the Tribunal was wrong to look at the employee’s abilities in the round. Rather, it should have considered separately considered each of the adverse effects.

Further, the EAT pointed out that a clinical diagnosis of ADHD and ASD can be used as evidence not only of an impairment but also of its impact. The EAT said the ‘diagnosis means they have been judged by a clinician to have significant (i.e. clinically ‘more than minor or trivial’) difficulties with the areas of functioning covered by the diagnosis’.

Implications:

This case is a reminder of the complexities involved in deciding whether an employee is disabled under the Equality Act 2010 – particularly for neurodivergence like autism and ADHD, which manifest differently in individuals.

In particular, remember:

A reliable clinical diagnosis is not only evidence that the employee has an impairment, but is also a factor that must be taken into account when assessing whether it has a substantial (i.e. more than minor or trivial) adverse effect on their ability to carry out day-to-day activities.

It is sufficient that there is a substantial adverse effect on just one day-to-day activity.

In deciding whether an adverse effect is substantial, the correct comparison to make is between the person as they are and as they hypothetically would be without the impairment (not between that person and others).

Employers should bear these points in mind when thinking about whether an employee may be disabled for the purposes of the Equality Act. Particularly when requesting evidence of the effects of an impairment from occupational health or an employee’s own doctor.

Tag: Stedman v Haven Leisure Ltd

Definition of Disability and Neurodiversity

How should you assess whether a neurodivergent individual has a mental impairment that has a ‘substantial adverse effect’ and meets the legal definition of disability?

The EAT in Stedman v Haven Leisure Ltd (available here) provides some useful pointers for employers.

In summary, the EAT recommends taking diagnosis into account, using a hypothetical version of themselves (without the disability) as a comparator and says that a substantial adverse effect on just one day-to-day activity is enough.

Tag: Stedman v Haven Leisure Ltd

Definition of Disability and Neurodiversity

How should you assess whether a neurodivergent individual has a mental impairment that has a ‘substantial adverse effect’ and meets the legal definition of disability?

The EAT in Stedman v Haven Leisure Ltd (available here) provides some useful pointers for employers.

In summary, the EAT recommends taking diagnosis into account, using a hypothetical version of themselves (without the disability) as a comparator and says that a substantial adverse effect on just one day-to-day activity is enough.

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