Disability – will you recognise it?

In most instances, it is clear whether a student seeking adjustments is disabled and the challenge more often than not is to decide whether the requested adjustments are reasonable. There are cases however when students have conditions, the effects of which are limited to a small, circumscribed aspect of that student’s life and following a case this summer in the Employment Appeal Tribunal (EAT) (Sobhi v Commissioner of the Metropolis UKEAT/0518/12/BA), such conditions should not be readily dismissed as not constituting a disability.
Definition of “disability” under the Equality Act 2010
 
Though the legislation under which the Sobhi claim was brought was the Disability Discrimination Act 1995, the definition of “disability” is similar to that which applies under the Equality Act 2010. Currently, disability is a physical or mental impairment, which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.
Deciding what are normal day-to-day activities can be challenging, as the Sobhi case illustrates.
The facts
Ms Sobhi, a police community support officer (PCSO) applied in 2008 for a job as a police constable. She failed to disclose a previous conviction in 1991 for theft. The previous conviction was discovered through a finger-print check. As a result, she did not get the promotion and received a disciplinary reprimand for the failure both to disclose the conviction originally in her application to become a PCSO and subsequently when she applied for the promotion. Some months later, she applied for the post of police constable but was again unsuccessful both because of the conviction, which she had disclosed on this occasion, and the reprimand.
Ms Sobhi brought a claim for disability discrimination on the basis that she suffered from dissociative amnesia as a result of traumatic events in her life, which manifested itself in an inability to recall events around the time of her arrest and conviction in 1991. Her disability was therefore the reason why she did not declare the relevant conviction.
An expert witness, a consultant neuropsychiatrist, indicted that he did not think that that the “relatively small gap” in Ms Sobhi’s past remote memory affected the day-to-day functioning of her memory or that it had any implications for her ability to perform as a police constable now.
The Employment Tribunal’s (ET) view
The ET held the view that while the amnesia clearly disadvantaged Ms Sobhi’s application to become a police constable, it also concluded that applying to become a police constable did not amount to her normal day-to-day activity.
The EAT’s decision
The EAT had a certain sympathy for ET’s position, given that the amnesia only related to events in 1991. It however felt bound to conclude that the fact that an activity is performed only intermittently or on a one-off basis does not make it any less a day-to-day activity. Further, the European Court of Justice (ECJ) previously ruled that that the concept of disability must be understood as referring to a limitation which “hinders the participation of the person concerned in professional life”. The ECJ also emphasised the need to interpret the Directive (from which equality legislation has its origin) in a manner which is consistent with the UN Convention on the Rights of Persons with Disabilities and hence, the need to consider whether the impairment which the worker has may hinder his/her full and effective participation in professional life on an equal basis with other workers.
Conclusion
It is interesting to note the United Nations Convention on Persons with Disabilities also requires participating states, such as the UK, to ensure that disabled persons are able to access general tertiary education, vocational training, adult education and lifelong learning without discrimination and on an equal basis with others. To achieve that purpose, states must ensure that reasonable accommodation is provided to disabled persons. 
The implications of the Sobhi case are, therefore, if an applicant’s or student’s impairment is very narrow in its effect and infrequently experienced, it may nevertheless amount to a disability if it in fact hinders that individual’s ability to participate in higher education or any significant aspect of it.

Geraldine Swanton
Senior Associate Solicitor
Education Team
For and on behalf of SGH Martineau LLP
DD: 0800 763 1455
F: 0800 763 1001
International DD: +44 870 763 1385
E:
geraldine.swanton@sghmartineau.com
W: www.sghmartineau.com      

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