Under the Disability Discrimination Act (“DDA”) a person has a disability if their physical or mental impairment has a “substantial and long term effect of their ability to carry out normal day-to-day activities”. The EAT have issued a decision considering the effect of a disabled employee’s coping strategies on their disabled status (Commissioner of Police of the Metropolis v Virdi).
Previous decisions indicated that in determining whether an impairment is substantial the Tribunal should consider whether it is “more than minor or trivial” and focus on what the employee cannot do. Statutory guidance indicates that if a person can behave in such a way that the effect of their impairment ceases to be “substantial” in terms of the DDA they will no longer be defined as disabled. However, the extent to which it is reasonable to expect a person to modify their behaviour and the possibility of the coping strategies breaking down in certain circumstances must be considered.
In this case the employee had a sight impairment leading to difficulties with reading and using computers. The employee had adopted coping strategies which enabled him to read and use computers but only with the inconvenience of regular breaks. He brought a discrimination claim against his employers alleging they failed to make reasonable adjustments to the arrangements for the examinations for promotion. The EAT held the tribunal had erred when deciding that the employee was disabled, as they had failed to consider his coping strategies.
This decision demonstrates that unlike medical treatment or “other measures” taken to correct the impairment, which under the DDA are disregarded in assessing the impairment, the extent to which “coping strategies” should be taken into account is a matter of degree. Various factors are to be considered, including the extent to which it is reasonable to expect the employee to rely on such strategies and the extent to which the strategies are likely be rendered ineffective in certain circumstances. The most recent statutory guidance indicates it would not be reasonable to expect a person to give up or modify normal activities, such as moderate gardening, shopping or using public transport. Clearly the main difficulty will be determining the difference between a measure and a coping strategy, especially where a coping strategy has been recommended by a medical practitioner.