Legal Corner: When is an employee considered to be disabled?

26th Apr 2013

The case of Walker v Sita Information Networking Computing Ltd ruled that obese workers can not be defined as disable employees.

The question of whether or not an employee is considered to be disabled within the meaning of The Equality Act 2010 is an important one; a disabled employee has the right not to be discriminated against on the grounds of their disability and, more significantly, has the right to require their employer to make reasonable adjustments in the workplace to therefore mitigating the effect of their disability on their ability to do their job.

The answer to the question however, is not always straightforward, as the recent case of Walker v Sita Information Networking Computing Ltd UKEAT/0097/12 demonstrates this.

Mr Walker claimed that he was disabled. He suffered from functional overlay compounded by obesity; he was found to have: asthma, dyslexia, knee problems, diabetes, high blood pressure, chronic fatigue syndrome, bowel and stomach problems, chemical sensitivity, hearing loss, anxiety and depression, persistent cough, recurrent fungal infections, carpal tunnel syndrome, eye problems and sacro-iliac joint pains (amongst other things). The symptoms to which those various conditions gave rise included pains in the head, knee, abdomen, lower back, left shoulder, left arm, left knee, left leg, both feet, anal area, loss of control causing his leg to give way, bowel symptoms including constipation and diarrhoea, difficulty in swallowing, shortness of breath, constant fatigue and poor concentration and poor memory. His weight was put at 137 kg (21.5 stones).

An occupational physician said that she believed that Mr Walker suffered from a chronic permanent condition which affected his daily living. However, there was no evidence of any pathological process to explain Mr Walker’s range of symptoms.

The question for the Employment Tribunal therefore, was whether somebody suffering from functional overlay accentuated by obesity could claim to be disabled.

The Employment Tribunal decided that Mr Walker was not disabled in the legal sense, on the basis that there was no physical or organic cause for his conditions apart from, to a degree, his obesity. However, the Employment Appeal Tribunal held that this was the wrong approach. They made clear that what an Employment Tribunal must concentrate on is whether s/he has a physical or mental impairment. Such impairment must have a substantial and long-term adverse effect on an individual’s ability to carry out normal day-to-day activities. However, there is no requirement to focus on the cause of the impairment, merely whether it exists.

That is not to say the absence of a cause is irrelevant; the Employment Appeal Tribunal noted that where an individual presents as if disabled, but there is no recognised cause of that disability, it is open to an Employment Tribunal to conclude that s/he does not genuinely suffer from it. That is a judgment made on the whole of the evidence.

However, that was very far removed from Mr Walker’s case where there was no challenge to his account of what he suffered. On that basis the Employment Appeal Tribunal held that he was a disabled person.

This case serves as a reminder to employers that when employees raise issues of disability with them, there needs to be a thorough investigation of the situation before applying the relevant legal principles, especially where the disability relied upon is not straightforward. In complex cases it may be prudent to seek advice before deciding whether to accept or reject an employee’s claim.

Safia Tharoo, Barrister, 42 Bedford Row, London


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