To be protected under the Equality Act (EqA), the claimant meet the legal definition. Disability is defined as:

“a physical or mental impairment which has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities”

• ‘Normal day-to-day’ means things that people do on a regular basis, for example mobility, dressing or cleaning (physical co-ordination), and having a conversation.
• ‘Long-term’ usually means the impairment should have lasted or be expected to last at least a year.
• ‘Substantial’ means not minor or trivial.

This definition is very wide and some impairments like cancer, HIV and Multiple Sclerosis automatically meet the definition from the point of diagnosis. People registered as blind or partially sighted are also automatically regarded as disabled under the Act, but this does not include sight impairments corrected by normal spectacles/contact lenses.

Excluded conditions

But, it is also important to be aware that there are certain identified tendencies and conditions that are specifically deemed not to amount to impairments.

The Equalities Act Reg 4 (1) states that:

“For the purposes of the Act the following conditions are to be treated as not amounting to impairments:—

(a) a tendency to set fires,

(b) a tendency to steal,

(c) a tendency to physical or sexual abuse of other persons,

(d) exhibitionism, and

(e) voyeurism.”

And, EqA Regs 3 and 5 also exclude the following from being treated as impairments:

• addictions to alcohol, nicotine and “any other substance” (essentially, drug addiction); and
• tattoos and piercings.

Often a child or young person may have both a protected disability and an excluded condition, but this does not necessarily mean that a claim would fail due to the excluded conditions.

In Governing Body of X Endowed school v Sendist and others [2009] EWHC 1842 (Admin) the school was found to have failed to make reasonable adjustments for the pupil’s ADHD generally, in the period leading up to an exclusion for violence, by failing to take steps to manage non-compliant behaviour and use calming and de-escalation strategies.