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Infection-prone condition: Is it a disability?

02 November 2012 #Employment

The Employment Appeal Tribunal has recently overturned a Tribunal’s decision that a claimant diagnosed with Selective IgA Deficiency had a disability (Sussex Partnership NHS Foundation Trust –v- Norris).  Selective IgA Deficiency is a defect of the immune system, the usual symptoms of which are that people may suffer from recurrent diarrhoea and upper respiratory infections.

Miss Norris brought a claim of direct disability discrimination because the Trust had withdrawn its offer of employment on finding out that she had the condition.  To succeed she had prove that she was a disabled person as defined by the Equality Act 2010 – namely that she had a physical or mental impairment which had a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities.

It was accepted that Miss Norris had a physical impairment, that she suffered from infections from time to time, and that as a result she had suffered an adverse effect a few years before the alleged act of discrimination.  However, the EAT concluded that the evidence before the Tribunal had not been sufficient to determine whether, at the time of the discrimination, Miss Norris’ condition had substantially adversely affected her ability to carry out normal day-to-day activities and whether any such adverse effects were likely to recur. As a result the EAT has remitted the issue of whether Miss Norris was at the material time a disabled person within the meaning of the Equality Act 2010 for a re-hearing before a differently constituted Employment Tribunal.

In reaching this decision the EAT did however suggest that an increased susceptibility to infection could have a substantial adverse impact upon a person’s ability to carry out day-to-day activities.  It was just that in this particular case the evidence presented to the Tribunal at first instance did not confirm such an impact.

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