The decision whether or not a person is disabled within the meaning of the Equality Act is a matter of fact for an employment tribunal to determine.  No-one else can specifically state that the Act applies unless the employee has a condition specified in the Act (HIV, cancer or MS).  A doctor cannot state categorically whether or not a person has a disability as this is a legal decision not a medical decision.

Many doctors do not understand the Equality Act, and will advise employees and employers that they 'have a disability' or 'have a substantial impairment' when they do not meet the criteria for disability specified by the Act. Furthermore, most doctors do not understand what adjustments may be necessary or are feasible in the workplace.

Research on tribunal cases shows that where an employer seeks advice from an occupational physician rather than the treating physician they are more likely to receive advice on adjustments, and if the case goes to tribunal the employer is more likely to win the case.

An occupational physician can advise on the diagnosis, and can state what the employee can and cannot do, the ease with which they do this, the prognosis and the effect of medication. 

Furthermore an occupational physician may give an opinion on the likelihood of a tribunal finding that the employee is disabled.  There is now a significant body of case law from tribunals and appeal tribunals that indicate how a tribunal is likely to decide.

If an employer wishes to clarify whether an individual is likely to be disabled, and the case is likely to go to tribunal, a thorough medical report outlining the facts of the case will help the employer, and ultimately the tribunal, decide whether the employee does in fact have a substantial and long-term impairment.  It will also help decide what adjustments are needed, and in turn whether these are 'reasonable'.

Where can I find out more?

The Equality and Human Rights Commission has a useful website that explains some of the issues of the Equality Act.