It was a mistake, the Employment Appeal Tribunal held in Walker v Sita Information Networking Computing Ltd, for an Employment Tribunal to say that a claimant was not disabled because there was no identifiable or recognisable pathological or mental cause for his “constellation of symptoms”. The Tribunal had been wrong to concentrate on the fact that there was no physical or mental cause for the impairments suffered – the point to look at was what effect the impairments had on everyday life, except where there was any doubt as to the genuineness of the symptoms.
In this case, the claimant suffered from “functional overlay” accentuated by his obesity – he weighed around 21.5 stones (136.5kg). EAT President Langstaff considered that obesity was not a disability of itself, but it could make it more likely that a claimant would be disabled. On the other hand, because obesity can be reversed by a determined effort to lose weight, it could be that any impairments caused by obesity could be reversed within 12 months – thus meaning that the claimant would not be disabled within the statutory definition, which is:
Section 6 Disability
(1)A person (P) has a disability if-
- – (a)P has a physical or mental impairment, and
- – (b)the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.
As confirmed in the government’s guidance to the definition of disability and corresponding Equality Act Guidance
"substantial" is more than minor or trivial – e.g. it takes much longer than it usually would to complete a daily task like getting dressed [and] "long-term" means [likely to last] 12 months or more – e.g. a breathing condition that develops as a result of a lung infection.
So what is "functional overlay". In this case what was described as an abbreviated list included asthma, dyslexia, knee problems, diabetes, high blood pressure, chronic fatigue syndrome, bowel and stomach problems, chemical sensitivity, hearing loss, anxiety and depression, persistent cough, recurrent fungal infections, carpal tunnel syndrome, eye problems and sacro-iliac joint pains. Any reasonable person would regard such a combination as causing a great deal of pain and inconvenience and, in the normal sense of the word (which is what matters in this context) substantial impairment. It does not matter whether the impairment is physical or mental or a combination of the two. Equally it does not matter what has caused the impairment.
Mr Justice Langstaff made it clear that obesity does not of itself and without more render a person disabled. However Continue reading