Under the Equality Act 2010, a person is considered to be 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” usually requires that the effect has lasted or is likely to last at least 12 months. In the recent case of Stedman v Haven Leisure Ltd, the Employment Appeal Tribunal (EAT) has provided guidance on applying this definition to a neurodivergent claimant.
Mr Stedman had a diagnosis of Autism Spectrum Disorder (ASD) and Attention Deficit Hyperactivity Disorder (ADHD). He brought claims of disability discrimination against Haven Leisure after being unsuccessful in a job application. A preliminary hearing was held to decide whether he met the definition of a disability in the Equality Act.
The Employment Tribunal accepted that Mr Stedman had a mental impairment but concluded that he did not satisfy the definition because his impairment did not have a substantial adverse effect on his ability to carry out normal day-to-day activities.
Mr Stedman’s appeal against this decision was upheld by the EAT, which highlighted flaws in the Tribunal’s reasoning. When evaluating adverse effects, the Tribunal had considered Mr Stedman’s abilities as a whole by weighing his strengths in areas such as academic success against activities where he struggled, such as social relationships or using crowded public transport. This was the wrong legal test: tribunals must assess each activity individually, not balance areas of difficulty against areas of strength. If a claimant’s condition has an adverse effect that is more than minor or trivial on even one normal day-to-day activity, this is sufficient to meet the statutory definition of a disability. Mr Stedman also had a clinical diagnosis of ADHD and ASD, which should have been taken into account as evidence of the impact of his impairments. The EAT emphasised that the correct comparison is between a claimant’s abilities with the impairment and how they would hypothetically be without it.
This case was remitted to a different tribunal for reconsideration of whether Mr Stedman was disabled by applying the principles set out by the EAT.
The EAT’s judgement illustrates the complexities involved in assessing whether a neurodivergent individual falls within the statutory definition of a disability. In practice, it is usually advisable to implement reasonable adjustments requested by an employee or job applicant, rather than disputing whether they are disabled. Identifying adjustments to alleviate any potential disadvantage should be an integral part of recruitment as well as other HR procedures, including performance and disciplinary proceedings.
