Saga NorenYou may be familiar with the rather eccentric and accidentally hilarious crime detective Saga Noren in the Scandinavian crime drama The Bridge.  As I grew up in the area where this gritty drama takes place, I recognise some of the cultural features of her behaviour. The actors themselves have admitted that Saga is actually a stereotype of what Danish people think about Swedish people and her sidekick Martin Rohde is conversely a stereotype of what Swedish people think about Danish people.

Sounds complicated?

The truth about Saga Noren

There’s been a lot of talk about Saga’s personality (or lack thereof) in the media.  It’s clear that the creators of this show were intending to show that Saga functions in a different way from that which one expects of neurotypical people, or “NT” (which I now know is jargon used to distinguish people on the autistic spectrum from “normal” people).  In a recent interview, the actress who plays Saga Noren, Sofia Helin describes her character as showing “another way of being intelligent”.  Her EQ (emotional intelligence) is very low but her IQ is very high.  While the media and the audience may have interpreted Saga Noren as having Asperger’s Syndrome (a form of autism) condition, the show’s creator says that they’ve actually never diagnosed her on the show. However, it is clear that Saga struggles to navigate the social rules of the workplace and according to one British psychiatrist, Eva Loth of the Institute of Psychiatry, King’s College London, she appears to fit somewhere on the autistic spectrum disorder scale.

In a recent BBC Health article, Robyn Steward, the National Autistic Society’s Ambassador, who actually has Asperger’s Syndrome herself, speaks sympathetically about Saga Noren’s character. According to Ms Steward, Saga is a good role model for women who are different and for women who are on the autistic spectrum.

The media’s flirtation with autistic spectrum disorder

The media’s flirtation with autistic spectrum disorder (ASD) does not end with Saga Noren.  Very recently, hidden disabilities of Asperger’s Syndrome and Bipolar Disorder have become a defining attribute of the main characters in some of our most popular series such as Sherlock, Homeland and as I’ve mentioned, The Bridge. The (anti-) heroes and heroines of these contemporary tales are all highly functional individuals in full-time employment with conditions that are classified as a disability under the Equality Act 2010 (EqA) and therefore enjoy protection under the same act.

Sherlock is self-employed but given that he performs his serviced personally he is likely to be protected by discrimination legislation. Saga, as an employee of the Swedish police, would have the same rights under the domestic legislation. Again, I digress, but these fictional characters are still good examples of working with a disability. If anything, it hopefully increases the general awareness of autism and other disabilities which may not be obvious to most people.

Recent developments

tie shoesThere have been quite a few recent developments as to what actually is classified as a disability.  One of the most noteworthy in the recent press is whether or not obesity is the new disability.  A test case is currently before the European Court of Justice which will determine whether EU law bans discrimination or grounds of obesity. Karsten Kaltoft was a child minder weighing more than 25 stone. He was employed by the local authority in Billund for 15 years. Eventually, he was sacked because his employer felt that he could no longer fulfil his duties. One of the examples of this was that he needed a colleague’s help to tie a child’s shoelace. Now, the EU court will have to consider whether obesity would fall within the legal definition of disability and whether the local authority was guilty of discrimination when they dismissed Karsten.

As the UK has the highest percentage of obesity in Europe (The National Obesity Forum has estimated that by 2050 half of the UK’s population will be obese) this could be quite a significant decision for both employees and employers. Given the rapid development in medical advances it is also clear that attempting to compose an exhaustive list of things that would be classified as a disability for the purposes of discrimination legislation is futile, but where do you draw the line?

Who is disabled in the eyes of the law?

The Equality Act 2010 defines disability as: any physical and/or mental impairment which has a substantial and long term adverse effect on a person’s ability to carry out normal day to day activities.  This involves some sort of limitation outside the normal range of differences in the ability among people.  People who used to have a disability will also be protected.

The Office for Disability Issues has published useful guidance on matters to be taken into account in determining questions relating to the definition of disability. (www.odi.gov.uk/equalityact) A disability can involve a wide range of impairments which can include:

  • Sensory impairments, such as those affecting sight or hearing
  • Fluctuating or recurring effects such as rheumatoid arthritis, myalgic encephalitis/chronic fatigue
  • Progressive, such as motor neurone disease, forms of dementia or lupus
  • Organ-specific, including respiratory conditions such as asthma and cardiovascular diseases
  • Developmental, such as autistic spectrum disorders, dyslexia, learning difficulties,
  • Mental health conditions and mental illnesses, such as depression, schizophrenia, eating disorders, bipolar affective disorders
  • Injury to the brain

The exclusions apply where the items listed above are an impairment in themselves. The exclusions also apply where these tendencies arise as a consequence of, or a manifestation of, an impairment that constitutes a disability for the purposes of the EqA.

A person with an excluded condition may nevertheless be protected as a disabled person if he or she has an accompanying impairment that meets the requirements of the definition. It is clear that it’s not necessary to consider how an impairment is caused, even if the cause is a consequence of a condition which is excluded.  For example, liver disease as a result of alcohol dependency may still count as an impairment although an addiction to alcohol in itself is excluded from the scope of the definition of the EqA.  What is important to consider is the effect of an impairment, provided it is not an excluded condition.

People with HIV, cancer and multiple sclerosis are disabled for the purposes of the EqA. That means that the person is protected by the EqA effectively from the point of diagnosis. Similarly, people are deemed to be disabled, without having to show that they have an impairment that has (or is likely to have) a substantial, adverse, long-term effect on the ability to carry out normal day to day activities if they have, for example, been certified as blind, severely sight impaired and partially sight impaired. That means that the person is protected by the EqA effectively from the point of diagnosis.

There are some exclusions and certain conditions are not to be regarded as an impairment for the purposes of the EqA Act.  These are:

  • Addictions to dependency of alcohol or nicotine or any substance (other than in consequence of the substance being medically prescribed)
  • The condition commonly known as hay fever except where it aggravates the effect of another condition
  • Pyromania (the tendency to set things alight)
  • Tendencies to steal
  • Tendencies to physical or sexual abuse of other people
  • Exhibitionism
  • Voyeurism

Disfigurements which consist of tattoos (which have not been removed) or non-medical body piercings or something attached to such piercings, are to be treated as not having a substantial adverse effect on that person’s ability to carry out normal day-to-day activities.

The exclusions also apply where these tendencies arise as a consequence of, or a manifestation of, an impairment that constitutes a disability for the purposes of the EqA.  They would also apply where these acts constitute an impairment in themselves.  A person with an excluded condition may nevertheless be protected as a disabled person if he or she has an accompanying impairment which meets the requirement of the definitions.

As you can see, the legal test of disability is quite complicated. However, it should be noted that in the vast majority of cases there is unlikely to be any doubt whether or not a person has or has had a disability.

What if you or one of your employees are classified as disabled under the EqA?

distressThe EqA provides disabled people with protection from discrimination in the work place. (See previous blog article Discrimination in the Workplace).

In addition, employers must make reasonable adjustments to accommodate a worker with a disability.

It is unlawful to discriminate against workers because of a physical or mental disability or fail to make reasonable adjustments to accommodate a worker with a disability.

  • This means that employers must not directly discriminate against a person because of their actual or perceived disability, or because they associate with a disabled person.
  • An employer must not treat a disabled person less favourably for a reason related to his or her impairment, unless that treatment can be justified.
  • The employer must not have procedures, policies or practices which, although applicable to all workers, disproportionately disadvantage those who share a particular disability, unless these can be justified.
  • An employer must make reasonable adjustments in the recruitment and employment of disabled people.
  • An employer must also not treat an employee unfairly who has made or supported a complaint about discrimination because of disability.
  • Disabled employees are also protected from bullying and harassment. (see previous blog article – Bullying and Harassment at Work)
  • If an employee has a disability that is making it difficult to work, employers should consider what reasonable adjustments they can make in the workplace to help.

Best advice if there’s a problem

If you think you may be disabled yourself, you should bring the matter to your employer’s attention and consult with your physician or appropriate advisor as to your individual requirements regarding adjustments that are needed.

If one of your employees approaches you with a disability you should hold a meeting to discuss any reasonable adjustments that could be made to ensure that your employee is receiving the appropriate support and that you are complying with the discrimination legislation in force.

Equally, if you think you have been discriminated against, or harassed or victimised because of your disability or because you associate with a disabled person you should raise a grievance.  If you receive a grievance from one of your employees you must take this seriously and address it in accordance with your Grievance Procedure and/or the Acas Code of Practice. (www.acas.org.uk/index.aspx/index.aspx).

Sofie Lyeklint

Sofie Lyeklint

Sofie has recently joined the firm and heads up the Employment department specialising in all aspects of employment law. She has a particular interest in Tribunals and drafting employment contracts, staff handbooks and settlement agreements. Sofie also works closely with our Commercial Property and Residential Property departments specialising in Collective Enfranchisement, which is flat owners entitlement to collectively purchase their own freehold, the Right to Manage and Lease Extensions. She is committed to reaching the best commercial outcome for our clients.

Sofie speaks fluent Swedish and Chinese and graduated with a Chinese & Politics honours degree from School of Oriental and African Studies in 2005. She then spent a few years living and working in China before returning to the UK to qualify as a solicitor. In her free time she enjoys scuba diving, boxercise, running and travelling.

She can be contacted at +44 (0)1273 204411 or by email to sofie@engleharts.co.uk
Sofie Lyeklint
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