When should a condition be classified as a disability?

17th June 2019

DAS Law Senior Associate and Legal Executive Tessa Faverty considers this crucial question, drawing on her professional expertise, and personal experience.

Tessa FavertyThrough this article I’ll share my insights into how to determine whether those suffering a medical condition need to be treated as a disabled person under the Equality Act 2010, and what that means in the workplace.

This topic is of particular relevance to me, because as well as being an employment lawyer I suffer from Sjögren’s Syndrome (SS), an autoimmune condition which affects the glands that produce saliva and tears, and can also affect joints. Estimated to affect 0.6% of adults in the UK, the most common symptoms of SS are a dry mouth and eyes, but can also include joint pain and fatigue.

The thing is, whilst some people suffering SS may not have symptoms that have a significant impact on their normal work day, each person is affected differently and for others it can have a big impact on their everyday life. But is it a ‘disability’?

Qualifying as a disabled person within the meaning of the Equality Act 2010

When most people think of what a disabled person is, many seem to use the highly scientific test; ‘would they qualify for a parking space?’ In case there was any need to clarify, it’s a little bit more complex than that.

In employment law, in order to be considered a disabled person for the purposes of pursuing a disability discrimination claim in an employment tribunal, you need to satisfy the definition under the Equality Act 2010. To break this down, you need to:

  1. Suffer from a physical or mental impairment for at least 12 months, or that the condition is likely to last more than 12 months. So in my case sadly for us SS sufferers this is a condition that is not yet curable and as such is without doubt going to last more than 12 months; and
  2. The condition has to have a substantial and adverse effect on your normal day to day activities. This last part of the test is usually the hurdle that many conditions cannot overcome, and in fact some SS sufferers may not, as their symptoms may be less substantial.

In practical terms, I advise clients to breakdown the symptoms and consider what would happen if they, or their member of staff did not take medication to manage that symptom? Would it make anything impossible to do, or more difficult? Is there pain? And what does that mean in terms of day to day living and how are your business and personal relationships affected?

If in listing these effects you find that there are a number of day to day activities significantly hindered by the condition, you are more likely than not to be a disabled person under the Equality Act 2010.

Does your employer know you suffer from SS?

Regardless of whether the definition of a disabled person under the 2010 Act is satisfied, I always advise that an employee should make their employer aware of any underlying medical condition. The more the employer knows, the more likely they will be more understanding when considering requests for time off for appointments, or adjustments in the workplace.

It should be noted that the right to adjustments and to more leniency will only arise if an employee can not only satisfy the tribunal that they are a disabled person, but that the employer knows or ought reasonably to have known about it.

It is therefore important that an employer is supplied with details of any condition as soon as it comes to light – or if pre-existing, at the commencement of employment. This should be evidenced in writing, recording the condition and ideally what impact it may have in the workplace.

Prudent, reasonable employers will then wish to not only ensure an employee is able to manage the condition in the workplace but also to understand to best protect their position from possible disability discrimination claims.

Reasonable adjustments

From an employee perspective, if you are aware of adjustments you need in the workplace to assist you - in my case, with managing my SS – you need to be asking your employer for these as soon as possible.

And don’t be surprised if there is some pushback on this; in the case of many conditions it may be that not many people know about them, and an employer is within their rights to ask for more information. This information could take the form of an occupational health referral or a letter from a treating consultant.

In general terms, whilst a medical condition is a private matter, my advice is the more information an employee can give an employer the more the latter will be informed and better placed to assist in managing a condition in the workplace, and that will be beneficial for both parties.

It is important to note that an employer has a duty to ensure that reasonable adjustments are put in place to avoid any disadvantage to the disabled employee.

However, not all adjustments are reasonable and any tribunal will take into account whether the adjustment asked for is proportionate in the circumstances of the business, including the cost, resources and any other disruption to the day to day running of the business.

In my case, one of the key adjustments that an SS sufferer will most certainly need from their employer is flexibility to attend medical appointments. Ideally these will be arranged for first thing in the morning or late in the afternoon so that that there is less disruption during the day to the running of the business.


A disabled person has enhanced rights in a tribunal to bring a claim for disability discrimination so it is important that an employer is notified as soon as possible of any condition, and the impact that it has.

A common type of claim we see as employment lawyers is a failure to make reasonable adjustments. Whilst your employer needs to consider adjustments in the workplace, my own Sjögren’s Syndrome perspective gives a really good example of a little known condition, and how important it is in such cases to give your employer a hand with setting out what adjustments could help you manage your condition.

As an employee, the key is to be open and communicate with your employer; be willing to attend occupational health and share information where possible. The more your employer knows, the more you will be supported. And as I’ve mentioned, ultimately this is mutually beneficial.

Can an employer ban working from home?

A recent ban on working from home at BNY Mellon raised questions about what an employee’s rights are when it comes to working from home.

June 2019 Learn more
How to deal with mental health discrimination at work

There are legal protections in place to support those with a mental health condition. Here’s what you need to know if you are being treated unfairly at work because of your mental health.

October 2018 Learn more
How to avoid workplace discrimination in your business

Businesses must do all they can to prevent discrimination in the workplace and being up-to-date with equality law is essential.

April 2018 Learn more

Read more from the DAS Law blog

Employment disputes Can your boss force you to work the August Bank Holiday?

Can you refuse to work on a bank holiday? DAS Law’s Hannah Parsons outlines your rights.

August 2019
Employment disputes , Goods and services disputes , Professional services disputes Is the customer always right when it comes to alcohol and pregnancy?

A recent Reddit post sparked debate on personal accountability and the rights of serving staff when it comes to alcohol. Larna Mason explains what the law says.

August 2019
Employment disputes What employers should do during a heatwave

What are an employer's obligations to employees when the weather gets too hot? Hannah Parsons gives the lowdown.

July 2019
Employment disputes , Protecting your business How working time regulations can limit your employees’ hours

A study by French researchers has highlighted some of the health risks faced by those working long hours. Sarah Garner, Solicitor at DAS Law, looks at the specific rules and regulations regarding the working day.

July 2019
Employment disputes When should a condition be classified as a disability?

DAS Law Senior Associate and Legal Executive Tessa Faverty considers this crucial question, drawing on her professional expertise, and personal experience.

June 2019
Employment disputes Can an employer ban working from home?

A recent ban on working from home at BNY Mellon raised questions about what an employee’s rights are when it comes to working from home.

June 2019
Employment disputes Scope of ‘injury to feelings’ expanded by employment tribunal

In employment law, awards for ‘injury to feelings’ have historically been permitted only in claims linked to discrimination, whistleblowing, and trade union membership, but the situation may now have changed.

May 2019
Employment disputes , Protecting your business When can company directors be personally liable?

The recent High Court case of Antzuzis & Others v DJ Houghton Catching Services & Others is a stark reminder of how company directors can be personally liable for their acts.

May 2019
Employment disputes 10 employment law changes to look out for

Hayley Marles highlights ten changes that HR professionals & business owners need to be aware of, including Brexit immigration rule changes.

April 2019
Employment disputes , Protecting your business 6 tips for giving your business a “spring clean”

Are your staff handbooks up-to-date? Are your staff taking all of their holiday allowance? Give your business a spring clean with these six tips for a clean and tidy SME.

April 2019
Employment disputes Don’t get in trouble with the law on April Fool’s Day

When does the line between hilarious and harsh get crossed and can a prank turn into legal proceedings?

March 2019
Employment disputes What to do if your employer stops you working from home

Lindsey Hunt, Legal Adviser at DAS Law, provides some insight regarding employees and their right to work from home.

March 2019
Employment disputes The Big Gig Rejig – what employers should know about the gig economy

DAS Law Solicitor John Griffiths explains what the ‘gig economy’ means and how businesses can help themselves today when it comes to clearly defining the status of their people.

March 2019