LABOR LAWYER

Introduction
Since the Disability Discrimination Act 1995 (DDA) was introduced in UK more than a decade ago, there has been much commentary and litigation focusing on the question of “meaning of disability” because only disabled person may fall in the protection and it is for the complaint to establish “disability”. The definition of disability has been criticized on a number of grounds. This article first sets out the statutory definition of disability; then discusses the much debated medical model of legislation; next points out the flaws within the medical definition; further illustrates the vagueness or uncertainty of many requirements as interpreted and improved by the UK case law concerning the statutory provision; meanwhile, the potential influence of EU equality law on domestic disability equality law will also be explored. At the end of this article, the recent amendments to both binding legislation and non-binding guidance will be given and the consequent implications will be explained.

Statutory Definition of Disability
Section 1(1) of DDA provides: “Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.”[1] Schedule 1 of the DDA contains a further description of the above four elements and some other aspects, such as sever disfigurement, effect of medical treatment, persons deemed to be disabled and progressive conditions. DDA is supplemented by the Disability Discrimination (Meaning of Disability) Regulations 1996, which excludes from the scope of the definition, addictions (other than those medically caused); certain personality disorders; hay fever and similar conditions; tattoos and piercings. The guidance on matters to be taken into account in determining questions relating to the definition of disability, issued by Secretary of State, although does not impose any legal obligations in itself, also gives us some clues.
For a claimant to be disabled s/he must satisfied four criteria, namely: a physical or mental impair; with a substantial adverse effect; and a long-term adverse effect; on normal day-to-day activities. Impairment is not defined in the Act, but it can only be identified if the condition adversely affects a person’s ability to carry out normal day-to-day activities, including mobility; manual dexterity; physical co-ordination; continence; ability to lift, carry or otherwise move everyday objects; speech, hearing or eyesight; memory or ability to concentrate, learn or understanding; or perception of the risk of physical danger. [2] A substantial effect is one that is greater than the effect which would be produced by the sort of physical or mental conditions experienced by many people which have only ‘minor’ or ‘trivial’ effects. [3] The effect of an impairment is a long term effect if it has lasted at least 12 months; the period for which it lasts is likely to be at least 12 months; or it is likely to last for the rest of the life of the person affected. Having the definition in mind, we see next how it has been criticized.

The UK medical model
It is submitted that there are two models to define disability, the social model and the medical model. While the social model recognizes ‘the close connection between the limitations experienced by individuals with disabilities, the design and structure of their environments and the attitude of the general population’ [4], the medical model regard disability as being a problem personal to the individual, directly caused by his or her impairment and unrelated to any external factors.
Clearly, the UK legislation is based on the medical model of disability. The term ‘impairment’ is not itself defined in the DDA, but ‘mental impairment’ was provided to include an impairment resulting from or consisting of a mental illness only if the illness is a clinically well recognized illness. [5] Although the legislation does not require clinical recognition for physical impairments, recent cases have highlighted the importance of proof of the nature or cause of the condition and thus its diagnosis. Further we can find clues from the classification of World Health Organization, which defines impairment as ‘any loss or abnormality of psychological, physiological, or anatomical structure of function.’[6]
Despite the fact that social model of disability has been the basis of the claim for disabled person’s rights for many decades [7], DDA adopts a medical model which has attracted much criticism. Firstly, the tendency of tribunals and courts to focus upon medical questions relating to the nature or diagnosis of the condition restricts the number of individuals who may claim protection under the DDA. The narrow and formal interpretation often given to the DDA excludes individuals who may be very susceptible to disability discrimination, because they fail to establish the nature of their impairment or its severity. The complexity of the procedure due to its medical, technical nature may also deter applicants from pursuing their claims.
Secondly, the medical approach has wider negative implications for disability rights in the workplace. Placing the focus on substantial medical impairment and requiring extensive evidence of the particular nature of the condition may serve to perpetuate the labeling and stigmas faced by disabled people trying to access and participate in the labor market. An employer may believe that an individual is less capable of working because he or she is perceived as differing in some way from physical or mental norms and thus the employer may discriminate against that individual. If that individual is to benefit from the DDA, he or she must first spell out the nature of the condition, and then prove that it results in a level of impaired functioning. The emphasis is on what is wrong with the individual, and what that individual consequently cannot do. Making claimants prove these factors is in itself unpalatable. Further, such an approach is unlikely to encourage equal consideration of disabled people and individuals who have no physical or mental impairments: it reinforces the line between 'normal' and 'disabled'.
Thirdly, the use of a medical model of disability within the legislative framework fails to address a variety of situations where disability discrimination may arise, because the law does not protect victims of discrimination where they themselves do not suffer from an impairment. The focus of the law is on substantial impairment (DDA disability) rather than on the phenomenon of discrimination itself. Thus the DDA does not cover individuals who suffer discriminatory treatment as a result of a false perception of disability (e.g. an individual with a minor hearing difficulty may be discriminated against despite that condition having no substantial effect on functioning). Nor does it cover individuals who suffer discriminatory treatment by reason of their association with a third disabled person (e.g. a partner of an AIDS sufferer).[8] Not only the legislating model has been criticized, even the medical definition has not been satisfactory formulated.

Boundary of the medical definition of disability
Previous Schedule 1, para.1 (1) DDA says that a mental illness must be a clinically well-recognized illness in order to amount to a mental impairment. In practice, this means a condition specifically mentioned in the World Health Organization’s International Classification of Diseases. If an expert's report is to be obtained (either on behalf of an applicant or a respondent) the expert should be specifically asked to address the issue of whether the condition falls within the International Classification. There may, for example, be a distinction to be drawn between depression (which is not classified) and clinical depression (which is). [9]
Even then, not all recognized mental disorders will be included. The Disability Discrimination (Meaning of Disability) Regulations 1996 reg. 4(1) treats tendency to set fires; tendency to steal; tendency to physical or sexual abuse of other persons; exhibitionism; voyeurism as not amounting to impairments for the purposes of the Act. Certain other conditions are also not to be regarded as impairment as provided by reg. 3, 4(2) and 5 of the aforesaid regulations. These are: addiction to or dependency on alcohol, nicotine, or any other substance (other than in consequence of the substance being medically prescribed); the condition known as seasonal allergic rhinitis (e.g. hay fever), except where it aggravates the effect of another condition. Disfigurements which consist of a tattoo (which has not been removed), non-medical body piercing, or something attached though such piercing, are to be treated as not having a substantial adverse effect on the person's ability to carry-out normal day-to-day activities (Definition Regulations).
Another flaw with the medical definition is that it does not protect perceived disabilities. Schedule 1 Para. 8 of DDA provides:
Where—
(a) a person has a progressive condition (such as cancer, multiple sclerosis or muscular dystrophy or infection by the human immunodeficiency virus),
(b) as a result of that condition, he has an impairment which has (or had) an effect on his ability to carry out normal day-to-day activities, but
(c) that effect is not (or was not) a substantial adverse effect,
he shall be taken to have an impairment which has such a substantial adverse effect if the condition is likely to result in his having such an impairment.
It is apparent that the Act does not protect individuals from discrimination where they possess asymptomatic conditions (for example, a person diagnosed as HIV positive but without manifest symptoms of the virus or a related illness). Individuals who have a genetic or other predisposition to (or risk of) a disability in the future, or individuals who experience a mistaken or erroneous reputation as a person who has an impairment or might do so in the future will also not be protected. For example, a person who has taken a medical test to detect a genetic disorder might be lawfully discriminated against even though currently quite well or asymptomatic. [10] Diagnosis does not itself bring someone within the definition. If the condition is progressive, then the rule about progressive condition applies. Now, we turn to see how tribunals and courts have been applying the criteria and correcting the flaws.

Case law interpreting disability
The law on definition of disability is scattered in relative acts, regulations and guidance. Case law, however, plays a key role in setting and developing the boundaries. A survey of claims under the employment provisions of the DDA found that 16% were rejected because the tribunal found that the applicant was not disabled, and that this is the most common reason for all DDA claims being rejected. [11]
In Goodwin v The Patent Office [1999] IRLR 4 the EAT underlined the status of statutory guidance, set out the questions which the tribunal should seek to answer when referring to the four different conditions required by words of section 1(1) of DDA.
The requirement ‘physical or mental impairment’ is not as straightforward as it looks. Rugamer v Sony Music Entertainment UK [2001] IRLR 644 concerned a state of affairs described medically as functional or psychological ‘overlay’: where a person claims to be suffering from physical injury, but the doctor says the symptoms are not the manifestation of any organic physical pathology, but are instead a manifestation only of the individual’s psychological state. The claim and the appeal failed as the EAT held that ‘the difficult dividing line between physical and mental impairment has in our judgment to depend not on whether a physical or mental function or activity is affected (a physical impairment may affect mental activities as well as physical ones, and vice versa) but rather on whether the nature of the impairment itself is physical, or mental.’[12] The medically orientated stance of EAT ignore the fact that claimant might not be conscious of the psychological nature of their impairment; potential litigants might be deterred from pursuing a claim by the stigma associated with the mental illness; and DDA is concerned with whether there has been a loss of function, not with why ( Rubenstein, Editorial, IRLE [2001] p 643). This stance was corrected by EAT in College of Ripon & York St John v Hobbs [2002] IRLR 185, holding that it did not matter what the cause of the symptoms were. This was further endorsed by the Court of Appeal in McNichol v Balfour Beatty Rail Maintenance Ltd [2002] IRLR 711 in which it was held that an impairment may result from an illness or consist of an illness and it was not relevant what had actually caused it.
The term ‘normal day-to-day activity’ tends to be more problematic. In Ekpe v Commissioner of Police of the Metropolis the tribunal took the view that putting rollers in one’s hair were not normal day-to-day activities because ‘they are activities carried out almost exclusively by women.’ Overturning this decision, EAT held that ‘what is "normal" for the purposes of the Act may be best understood by defining it as anything which is not abnormal or unusual.’[13] Although DDA has been most active in the employment sphere, the term ‘normal day-to-day activity’ is explained in the statutory guidance not to include work of any particular form. This narrow approach was somewhat expanded in Cruickshank v Vaw Motorcase [2002] IRLR 24. In this case, EAT held that ‘it is not appropriate to confine the evaluation to the extent to which the applicant is disabled only in a normal day-to-day environment. If, while at work, an applicant's symptoms are such as to have a significant and long-term effect on his ability to perform day-to-day tasks, such symptoms are not to be ignored simply because the work itself may be specialized and unusual.’ [14]
The ‘substantial’ criterion is often combined with the issue of ‘normal day-to-day activity’ or ‘effect of medical treatment’. In Vicary v British Telecommunications plc [1999] IRLR 680, the EAT held: ‘Having concluded that the ability of the applicant to do a number of activities was impaired, the tribunal should have concluded that she had a disability within the meaning of the Act.’ ‘It is not for a medical expert to tell the tribunal whether the impairments which had been found proved were or were not substantial. Those are matters for the employment tribunal to arrive at its own assessment.’[15] Given that medical opinion is a necessary evidence and tribunals don’t have an apt level of expertise in this area, tribunal’s own assessment will not be an easy task. In Kapadia vLambeth BC [2000] IRLR 699, approving EAT, the Court of Appeal held the employment tribunal erred in law in finding that the applicant's mental impairment did not have a substantial adverse effect on his normal day-to-day activities, in circumstances in which there was uncontested medical evidence that his anxiety, neuroses and depression would have had such an effect but for the fact that he had received medical treatment (counseling session).
Addictions, save those resulting from medical treatment, and tendency towards certain unacceptable behaviors are excluded by the Disability Discrimination (Meaning of Disability) Regulations 1996. However, identifying the difference among the cause or manifestation of disability and disability itself, or the real ‘cause of the less favorable treatment’, is not as easy as it pretends. Power v Panasonic UK Ltd [2003] IRLR 153 concerned an employee suffering from depression caused by alcohol abuse. In the first instance, both experts tried to identify which came first, the depression or the alcohol abuse. EAT held this was immaterial. What is material is to ascertain whether the disability from which they are suffering at the material time is a disability within the meaning of the Act or whether, where it is relevant as in this case, it is an impairment which is excluded by reason of the Regulations from being treated as such a disability. [16] In Murray v Newham CAB [2003] IRLR 340, a claim based on tendency to violence as a consequence of paranoid schizophrenia was rejected by a tribunal, but was allowed on appeal. The EAT held that for a condition to be excluded, it must be a free-standing condition, and not a direct consequence of legitimate physical or mental impairment. This approach, however, may create the anomaly that ‘the more severe the tendency, the more likely it is to be caused by a legitimate impairment’(IRLR Hightlithts, June 2003). To avoid this, the EAT took a different stance in Edmund Nuttall Ltd v Butterfield [2006] ICR 77, holding that the concept of a 'free-standing condition' is not helpful. The critical question is one of causation. What was the reason for the less favorable treatment, here dismissal of the claimant? If the reason was the legitimate impairment, then prima facie discrimination, subject to the defence of justification, is made out; if the reason was the excluded condition and not the legitimate impairment, then the claim fails by reason of his disability. [17] This seems again unsatisfactory as it confuses the question on disability and proving of justification, by imposing a blanket exclusion from DDA. Since Treaty of the European Community Article 13 provided a new competence for the Community to take appropriate action to combat discrimination based on inter alia disability’, and relative directive has been implemented in Member States, the question of disability definition has also to be looked at in EU context.

The Impact of EU Framework Employment Directive
Council Directive 2000/78 establishing a general framework for equal treatment in employment and occupation prohibits discrimination because of, among other grounds, disability, but it contains no definition of disability. The member states seems be allowed a wide range of definitions. Nevertheless, ECJ may be called upon to use its authority to impose some constraints. Recently in Case C-13/05, Navas v Eurest Colectividades SA, ECJ gave its first decision considering the scope of the term ‘disability’ in EU level. In this case, Ms Chacón Navas was dismissed without stating any reason after being off sick for some seven months. She claimed her dismissal constituted discrimination on disability. Contrary to the opinion of Advocate General and disappointing for disabled community, ECJ followed a classical medical model, holding that: ‘the concept of 'disability' must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life.’ ‘A person who has been dismissed by his employer solely on account of sickness does not fall within the general framework laid down for combating discrimination on grounds of disability by Directive 2000/78.’ Thus, this ruling will not help much to expand the UK medical approach of disability. However the fact that currently there are significant differences in the definitions of disability adopted by various Member States which conflicts with the general objective of the EU to promote free movement of persons and to prevent distortions in competition among Member States will call for further interaction at EU level. Nevertheless, after years of operation, UK disability discrimination law has been amended to correct some of the flaws.

Recent Amendments of DDA and Guidance
Although ‘the Directive does not define “disability” but allows Member States to provide an appropriate definition,’ [18] the government decided to widen the definition of disability after considering the recommendations of Disability Rights Task Force. The definition of disability of DDA has now been amended by Disability Discrimination Act 2005, section 18
18 Meaning of “disability”:
(1) Schedule 1 to the 1995 Act (which supplements the definition of “disability” in section 1 of that Act) shall have effect with the following amendments.
(2) Paragraph 1(1) (mental illness must be clinically well-recognized if it is to be basis of “mental impairment”) is omitted.
(3) Before paragraph 7 (persons deemed to be disabled) there is inserted—
“6A. (1) Subject to sub-paragraph (2), a person who has cancer, HIV infection or multiple sclerosis is to be deemed to have a disability, and hence to be a disabled person.
After the amendment, the requirement that mental illness must be clinical well-recognized has been removed. It is expected that medical evidence citing anxiety, stress and depression such as presented in Morgan v Staffordshire University [2002] IRLR 190 will be taken more seriously than before for claimant suffering from depression. The focus will be put on substantial and long term adverse effects, rather than on the medical form.
To a certain degree, the ‘perceived disability’ has been included by section 6A. The symptomatic conditions such as cancer, HIV infection or multiple sclerosis will be deemed disabled, from the point of diagnosis. However, not all progressive conditions are affected this way. The other conditions not included section 6A will still be governed by section 8 ‘progressive condition’. Further, discrimination against genetic predisposition remains lawful.
Assimilating Disability Discrimination Act 2005 and relevant case law on the definition of disability, the Secretary of State issued a new guidance on the meaning of disability in 2006. Just mention a few new points here:
A7. It may not always be possible, nor is it necessary, to categorize a condition as either a physical or a mental impairment. The underlying cause of the impairment may be hard to establish. D3. An impairment will only be treated as affecting a normal day-to-day activity if it involves at least one of the capacities set out at D1 above. The substantial effect is determined by looking at the effect on the particular day-to-day activity, not the relevant capacity. D4. It should be noted that the list of capacities set out in D1 above is not a list of day-to-day activities.
Although the revision of guidance reflected some reasoning of case law, we may expect this will in turn affect the future development of UK judicial interpretation on disability definition.

Conclusion
Once the definition of disability was criticized by McColgan in Discrimination Law as ‘narrow and unsatisfactory in many ways, and serves to deny the Act’s protection to many who are discriminated against in connection with their actual or perceived health status’. This situation has changed to a certain degree by case law, recent enactment of Disability Discrimination Act 2005 and revision of statutory guidance. Judicial interpretation has been generally following a broadening direction although with fluctuations. The notorious requirement of ‘clinically well-recognized’ reflecting medical model has been removed and some perceived disability has been included. However, the UK approach has been limited to a mild alteration of current provision within the medical model, rather than a complete shift to the social model. Nevertheless, one interesting point remains unchanged. With the sole exception of victimization, the non-symmetrical feature of disability equality law has been kept and only disabled persons are protected under DDA.

Footnote:
1. “For the purposes of this Act” has been amended to include “[and Part III of the 2005 Order]”.
2. Disability Discrimination Act 1995, Schedule 1 Para 4(1).
3. Guidance on matters to be taken into account in determining questions relating to the definition of disability, part 2 Section B1.
4. United Nation Standard Rules on the Equalization of Opportunities for Persons with Disabilities, Para 5.
5. Disability Discrimination Act 1995, Schedule 1 Para 1(1), appealed by Disability Discrimination Act 2005.
6. World Health Organization, International Classification of Impairments, Disabilities and Handicaps: A Manual of Classification Relating to the Consequences of Disease (New Youk: WHO, 1980)
7. Oliver, Understanding Disability: From Theory to Practice (Basingstoke: Macmillan, 1996), Barton (ed) Disability and Society: Emerging Issues and Insights (London: Longman, 1996).
8. Katie Wells, ‘The Impact of the Framework Employment Directive on UK Disability Discrimination Law’ ILJ 2003 32 (253)
9. Peter Edwards, ‘Disability Discrimination Act 1995 Claims’ J.P.I. Law 2001, 3, 292-302
10. Brian Doyle, ‘Enabling Legislation or Dissembling Law? The Disability Discrimination Act 1995’ (1997) 60 MLR 64
11. S. Leverton, ‘Monitoring the Disability Discrimination Act 1995 (Phase 2)’ (London: Department for Work and Pensions, 2002).
12. Rugamer v Sony Music Entertainment UK [2001] IRLR 644 para 34.
13. Ekpe v Commissioner of Police of the Metropolis [2001] IRLR 605 para 32.
14. Cruickshank v Vaw Motorcase [2002] IRLR 24 para 28.
15. Vicary v British Telecommunications plc [1999] IRLR 680 para 11, 16.
16. Power v Panasonic UK Ltd [2003] IRLR 153 para 12.
17. Edmund Nuttall Ltd v Butterfield [2006] ICR 77 para 29.
18. The Explanatory Notes and Supplementary Questions published by the government to accompany the (Draft) Disability Discrimination Act 1995 (Amendment) Regulations 2003

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