Ageing not a disability

Leeds Employment Tribunal has just ruled that disability resulting naturally from ageing falls outside the Disability Discrimination Act 1995 (the "Act") in a case where we were acting for the employer. The decision is welcome and likely to have a wide-reaching impact on this area.

Findings of fact

The Tribunal found that in relation to the Applicant's painful ribs, knee and lower back the Applicant was suffering from nothing other than the normal human ageing process. The Tribunal went on to find that in his elbows, the Applicant was susceptible to pain not typical for a man his age.

Application of the law to the facts

The Tribunal held that the Applicant was not suffering from any impairment in relation to his ribs, knee and lower back. His only impairment related to his elbows. However, the Tribunal further held that this impairment did not have a substantial adverse effect on his ability to undertake normal day-to-day activities.

Highlighted points

The Tribunal made the following useful points when approaching the definition of disability:

• An impairment means worse than the band of "normality". In other words, something which is significantly worse than most people of the age of the person who claims to be impaired.
• The Tribunal rejected the argument that unless the Tribunal were convinced that the Applicant was consciously lying, they should accept the Applicant's assessment of his pain, as reported by his medical expert, because pain is subjective. The Tribunal could and did believe that the Applicant was exaggerating his symptoms and was not bound to accept his medical expert's opinion.
• A progressive condition must be more than the simple onset of ageing. Otherwise, if an employee suffered a mild twinge in their back, you could find a doctor to make the most uncontroversial statement that by the time the employee was 80 years old, the trivial impairment would have become substantial under the Act.
• Disabled people do not have a level playing-field with non-disabled people. The Act attempts to level the playing-field by creating a protected class. The debate centres on how narrowly this class should be restricted. The Applicant argued that the Act should be interpreted literally, i.e. to admit to the protected class a person who for example had on one day in the past a substantial adverse effect which was likely to recur at some indeterminate date in the future, for whatever cause. Also a person who had some present or past adverse effect which as he became older may become substantial would be admitted to the protected class. The Tribunal rejected this literal approach of the Act. If such an approach was taken, the Tribunal believed that a large proportion of the middle aged population would be protected. This was not the purpose of the legislation and the Act must demand public respect and support.

For further information, please contact Simon Jeffreys by e-mail at [email protected] or by telephone on +44 (0)20 7367 3421, or alternatively contact Thomas Ince by e-mail at [email protected] or by telephone on +44 (0)20 7367 2580.