Can being prone to infections amount to a disability?

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Can being prone to infections amount to a ‘disability’?

It’s not always easy for employers to determine whether an employee’s medical condition amounts to a disability as defined by the Equality Act 2010.

The official definition is a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”. Conditions such as Cancer, HIV infection or Multiple Sclerosis are automatically deemed disabilities.

The Act states that where an impairment is subject to treatment, then you look at the effect of that condition without the treatment; for example someone using a hearing aid or someone with diabetes which is being controlled by medication or diet.

However in Sussex Partnership NHS Foundation Trust v Norris last month, the EAT held that a life-long condition, controlled by medication, making Mr Norris more prone to infections, is not sufficient to satisfy the definition of disability under the Equality Act, even if at least one such infection caused a substantial adverse effect on his ability to carry out normal day-to-day activities.

The guidance on disability is lengthy (see Disability Guidance – http://www.equalityhumanrights.com/uploaded_files/guidance_on_matters_to_be_taken_into_account_in_determining_questions_relating_to_the_definition_of_disability.pdf). The cautious approach for employers confronted with an employee with a suspected disability is to consider reasonable adjustments just in case, and to take legal advice if in any doubt.

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