The Equality Act 2010 states that a person shall be deemed to have 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. The effect of an impairment will be long term if it has lasted for at least 12 months, it is likely to last for at least 12 months, or it is likely to last for the rest of the life of the person affected.

The determination of whether an employee is disabled will ultimately be for an Employment Judge to decide. However, the Employment Appeal Tribunal has recently, in the case of Fathers v Pets At Home Ltd, given useful commentary on factors that must be considered and therefore you should be mindful of:

  • Even if an impairment has ceased to have a substantial adverse effect on your employee’s ability to carry out normal day-to-day activities, as in this case where the employee’s depression it should be treated as continuing to have that effect if that effect is likely to recur i.e. could well happen.
  • When determining if the impairment has a substantial adverse effect on your employee, you should consider whether any treatment they are receiving is reducing the effect on normal day-to-day activities and whether, in the absence of that treatment, it might well be likely to recur.

We advise that answers to both of these questions are sought from your employee’s GP or occupational health when a referral is made for a medical report – but do remember we are just at the end of the telephone!

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