If you have disability and consider your rights and entitlements, the key question is, if your condition or mental or physical symptoms meet the definition of section 6 of Equality Act 2010. Very commonly employees try to find information about it, when their employer considered them to be not disabled, either by the own judgement or through third party occupational health.
If that happens to be in your case, do not give up, such misclassification of your status may be due to your lack of insight and / or incorrect disclosures you made about your potential disability.
This is because, in a case where your disability is not visual or sever enough e.g. paralysis, deafness or stroke, the burden of prove is on you to show that it meets these two conditions:
In this article, we address several circumstances when you don’t need to prove the sub-section ''B'' to get protection under the Act, as a disabled employee. If neither of these circumstances reflect your situation, consider reading through ''Can depression be classified as a disability in the workplace?''
When you don't need to prove substantial and long-term adverse effect ? | Disability Discrimination at Work | UK
The Act provides for certain people to be deemed to meet the definition of disability without having to show that they have an impairment that has (or is likely to have) a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities.
Therefore, when you analyse your case and try to establish if your condition leads to either physical or mental or both impairments, you should first see if you suffer from and have been diagnosed with one of the following:
· HIV infection
· Cancer
· Multiple sclerosis
The Act states that a person who has cancer, HIV infection, or multiple sclerosis (MS) is a disabled person. So, if you have a diagnosis of any of these conditions, you are protected by the Act effectively from the point of diagnosis and do not need to prove that your condition(s) lead to a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities. If your employer's decision is different, you should raise a grievance immediately.
The other condition automatically protected by the Act is ‘’blindness’’, ‘’severe sight impairment, or partial sight impairment’’
Regulations provide that a person who is certified as blind, severely sight impaired, sight impaired or partially sighted by a consultant ophthalmologist is deemed to have a disability and does not need to prove that your condition(s) leads to substantial and long-term adverse effect on your ability to carry out normal day-to-day activities.
Progressive conditions
The ‘’third’’ group of conditions that will be automatically excluded form a need to prove that it has led to substantial and long-term adverse effect on your ability to carry out normal day-to-day activities is called ‘’progressive condition’’.
This section applies to you if you have been diagnosed with a progressive condition, as a result of which you have an impairment that affects your ability to carry out normal day-to-day activities, but even if the effect is not (or was not) of substantial and long-term.
Because with progressive condition you are considered to have an impairment with a substantial adverse effect if the condition is likely to result in such an impairment in the future, without needing to prove that your condition has, leads to, or will lead to a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities. Regulations can specify whether a certain condition should be considered progressive or not.
The most important thing to consider now is what a progressive condition is ?
By NHS - Progressive disease or progressive illness is a disease or physical ailment whose course in most cases is the worsening, growth, or spread of the disease. This may happen until there is serious debility, organ failure and may be life-limiting.
Some of the examples of progressive disease:
Neurological
· multiple sclerosis (MS)
· Parkinson's disease (PD)
· Huntington's disease (HD)
Digestion
· IBS
· Crohn's
Joints
· Osteoporosis
· Arthritis
These are only examples and it is not exhaustive list, in theory, a progressive disease by the meaning of this section is actually any illness or condition that your doctor claims to be never cured and which may get worse is future both symptoms and complication wise. The most common example is ‘’type 2 diabetic’’.
By NHS: Type 2 diabetes is a progressive disease in which the risks of myocardial infarction, stroke, microvascular events, and mortality are all strongly associated with hyperglycaemia (1). The disease course is primarily characterized by a decline in β-cell function and worsening of insulin resistance. So, if you suffer from type 2 diabetic your doctor will most definitely advise you that it can lead to several symptoms and or complication that will have had adverse effect on your ability to carry out normal day-to-day activities, you must have experienced those symptoms or complication but you do not need to prove it has been substantial and long-term.
Example 1
An employee has been experiencing chronic fatigue, vision problems and dizziness. The effects are quite minor at present, but he has been diagnosed as having complication of unmanaged type 2 diabetics as he had been unaware of it. Eventually it is expected that the resulting decline in β-cell function and worsening of insulin resistance will cause substantial adverse effects on his ability to walk, run and climb stairs as the results of high BMI. Although there is no substantial adverse effect at present, type 2 diabetics is a progressive condition, and this employee will still be entitled to the protection of the Act under the special provisions in Sch1, Para 8 of the Act if it can be shown that the effects are likely to become substantial.
Example 2
A woman has been diagnosed with systemic lupus erythematosis (SLE) following complaints to her GP that she is experiencing mild aches and pains in her joints. She has also been feeling generally unwell, with some flu-like symptoms. The initial symptoms do not have a substantial adverse effect on her ability to carry out normal day-to-day activities. However, SLE is a progressive condition, with fluctuating effects. She has been advised that the condition may come and go over many years, and in the future the effects may become substantial, including severe joint pain, inflammation, stiffness, and skin rashes. Providing it can be shown that the effects are likely to become substantial, she will be covered by the special provisions relating to progressive conditions. She will also need to meet the ‘long-term’ condition of the definition in order to be protected by the Act.
As explained above, in order for the special provisions covering progressive conditions to apply, there only thing you need to show is some adverse effect on your ability to carry out normal day to day activities for example:
shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities.
But any of the above imparment does not have to be a substantial adverse effect. If you have a progressive condition successfully treated (for example by surgery) so that there are no longer any adverse effects, the special provisions will stop to apply. However, if the treatment does not remove all adverse effects the provisions will still apply. In addition, where the treatment manages to treat the original condition but leads to other adverse effects the provisions may still apply.
Example
A man has an operation to remove the colon because of progressing and uncontrollable ulcerative colitis. The operation results in his no longer experiencing adverse effects from the colitis. He requires a colostomy, however, which means that his bowel actions can only be controlled by a sanitary appliance. This requirement for an appliance substantially affects his ability to undertake a normal day-to-day activity and should be taken into account as an adverse effect arising from the original impairment.
Conclusion
Whether the effects of any treatment can qualify for the purposes of Sch1, Para 8, which provides that a person with a progressive condition is to be regarded as having an impairment that has a substantial adverse effect on his or her ability to carry out normal day- to-day activities, will depend on the circumstances of the individual case. Always seek a legal advice before jumping into unfounded conclusion.
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