A tale of two disabilities

In a recent first instance decision Mrs D Phillips v Aneurin Bevan University Local Health Board, the Cardiff Employment Tribunal considered two interesting aspects of disability discrimination:

1. the available guidance about how measures which can “ameliorate” (reduce or remove) the adverse effects of an impairment affect whether the impairment amounts to a disability for the purposes of the Equality Act 2010 (“the Act”); and
2. the potential for “stress at work” to amount to a mental impairment and, therefore, be a potential disability.

At a preliminary hearing convened specifically to decide whether the claimant was a disabled person by reason of a physical condition, dermatitis, and a mental impairment, “stress at work”, the tribunal decided that in the claimant’s case, her dermatitis was not a disability but that her stress at work was.

The case, although not binding (first instance decisions are of persuasive value only), is a helpful reminder about the need to consider each of the relevant components of the disability definition in the Act, with reference to the Government Guidance on determining questions relating to the definition of disability (“the Guidance” – link below); and an opportunity to review the status of “stress” conditions as potential disabilities.

Factual background

The claimant suffered an allergic reaction to the use of latex gloves in work in 2016 which meant she then used alternative vinyl gloves which removed the problem. This arrangement was then changed in 2021 (seemingly due to Covid-related PPE supply issues) and alternative types of gloves were trialled, which caused further allergic reactions. The tribunal was satisfied that the allergic reactions on the skin of her hands – redness, itchiness, scaliness, broken skin and inflammation - were a physical impairment.

The relevant day to day activities which caused the claimant to suffer these reactions were those which involved her coming into contact with washing up liquid, certain handwashes, shampoos, body washes, cleaning products and certain foods such as raw chicken, tomatoes and potatoes.

The claimant had, at various points, successfully taken measures to avoid allergic reactions by covering her hands with vinyl gloves or, at home, cotton gloves underneath rubber gloves.

As a result of the issues with her hands / gloves at work, from 2021 the claimant had a period of almost two years off work due to “stress at work”.

Summary of outcome

The employment judge considered it reasonable for the claimant to use hand coverings to reduce / remove (or “ameliorate”) the effects of the dermatitis / physical impairment, such that it was not a disability for the purposes of the Act.

On the other hand, the tribunal found that the claimant was disabled for the purposes of the Act, by reason of her “stress at work”, even though there was not a formal diagnosis of a medical illness. This was because the tribunal was satisfied, on the evidence presented by the claimant (her disability impact statement, GP records), that she had a mental impairment which had a substantial and long term adverse effect on her ability to carry out day to day activities; and it was not simply an adverse reaction to adverse events or circumstances.

Comment: behaviour modification v corrective measures – scope for further judicial clarification?

Relying upon the Guidance (paragraphs B7; see also B8-10), the tribunal in this case reached its decision that the claimant was not disabled by reason of her dermatitis, on the basis that an employee who is reasonably able to modify their behaviour to effectively reduce or remove (“ameliorate”) the adverse effects of an impairment, such that they are not substantial, is not disabled for the purposes of the Act.

It should also be remembered, however, that the Act itself (Schedule 1, paragraph 5) requires a tribunal to discount corrective measures (such as medical treatment or the use of a prosthesis or other aid) which reduce the effect of the impairment, and work on the basis of the likely effect that the individual would suffer if the corrective measure / treatment was stopped when deciding if there is a substantial adverse effect on the individual’s day to day activities.

Whilst it is established that any conflict between the Act and the Guidance will be resolved in favour of the Act, there is certainly scope for further clarification by a higher court about the tension between these potentially conflicting provisions.

What does this case mean for me?

Cases involving consideration of the impact of medical treatment or modification of behaviour / use of avoidance strategies on the effects of a physical or mental impairment can be nuanced and finely balanced; and, therefore, their outcomes difficult to predict.

In practical terms, if an employer is unsure whether an employee is disabled, it is often safer to err on the side of caution and proceed as if they were, when dealing with internal employment matters.

A separate, more straightforward point, is that this case serves as a useful reminder that, even without a formal diagnosis, "stress at work" can amount to a disability under the Act.

Disability: Equality Act 2010 - Guidance on matters to be taken into account in determining questions relating to the definition of disability.