The claimant had worked for the respondent as a Geographical Information Systems Manager from September 1984 until September 2018.  The claimant had been subject to disciplinary action by a new line manager on the basis that he had allegedly falsely recorded more hours than he had actually worked.  The contention from the claimant was that he had agreed with his old line manager that he would record working hours of 9 to 5, irrespective of the exact hours he worked. On occasions he was absent during the working day, but often worked until late into the night at home; working considerably more than his contracted hours in total.

During the course of the disciplinary proceedings his Union representative suggested that he should be assessed to establish whether he was on the autistic spectrum due to some of the characteristics that were being displayed.  In June 2018 there was a restructuring of the claimant’s department where he accepted redundancy with an added agreement that the disciplinary proceedings would be discontinued.  He subsequently brought a claim for disability discrimination.

There was no dispute between the parties about the diagnosis of Asperger’s Syndrome, yet the Tribunal found that the claimant was not disabled in line with the legislation as it did not have a substantial adverse impact on his day-to-day activities. The claimant’s appeal outlined that the Judge had erred in the approach to ‘substantial adverse impact’ as the Judge had not addressed the activities he said he could not do as a result of his condition.  There was also a further contention that there had been a failure to apply the medical evidence to the question of whether there was a substantial adverse impact.

The EAT allowed the appeal.   The EAT outlined that the statutory definition takes precedence over other guidance documents relating to the Equality Act 2010.  To that end, substantial is defined as being more than ‘minor or trivial’.  The EAT found that the Tribunal had failed to consider the wide range of day-to-day activities instead focusing on public speaking and socialising.  There were difficulties with being able to cope with changes to procedures as well as communicating within the workplace.  Indeed, the Tribunal looked at the meaning of substantial through a comparison with the general population rather than looking at whether the impact was more than ‘minor’ or ‘trivial’.  As a result, this was a misdirection on the law and the case would have to be remitted for a decision as to whether the claimant was disabled in line with the statutory definition.

Practical Lessons

This case demonstrates the importance of the statute as being the guide.  The EAT noted their surprise that counsel for both parties had not quoted Section 212 of the Equality Act 2010 which gave the meaning of substantial.  It was this examination and the fact that it had to be more than ‘minor’ or ‘trivial’ that had to be considered.   Accordingly, the case demonstrates the need for the Tribunal to look widely at the day-to-day activities with the view to whether there is more than a minor effect rather than making some general comparison to others in the population.  This will especially be true in cases involving Autism where the effect on day-to-day activities will not be the same from one case to the next.
https://www.gov.uk/employment-appeal-tribunal-decisions/mr-a-elliott-v-dorset-county-council-ukeat-slash-0197-slash-20-slash-la-v