영국 장애차별금지법과 ‘장애’의 개념

The Anti-Discriminatio n Against and Remedies for Persons with Disabilities has been enforced since 2008 in Korea. This Act defines person with disability as a person who has a disability(art.2(2)). In the Act, disability means an impairment or loss of physical or mental functions that substantially limits an individual’s personal or social activities for an extended period(art.2(1)). The purpose of this article is to provide a basic research on the interpretation and application of the definition of disability in the Act by studying the concept of disability in UK. In the Equality Act 2010(EqA), a person has a disability if he or she has 'a physical or mental impairment' which has a 'substantial and long-term adverse effect on ability to carry out normal day-to-day activities'(S.6(1)). The supplementary provisions for determining whether a person has a disability are found in Schedule 1 to the EqA, Regulations, Guidance and Code of Practice. Within the contours of the definition of disability in EqA, four criteria need to be satisfied to establish the existence of a disability: there must be a) a physical or mental impairment, b) which must affect the ability to carry out normal day-to-day activities, c) in a long-term and d) substantial manner. This article studies each of four different conditions and draws issues. The main characteristics in implementation of the definition of disability is as in the following. The term 'mental or physical impairment' should be given its ordinary meaning. It is not necessary for the cause of the impairment to be established. Whether a person is disabled for the purposes of the Act is generally determined by reference to the effect that an impairment has on that person’s ability to carry out normal day-to-day activities. A 'substantial' adverse effect simply means an effect which is something more than minor or trivial(EqA S.212(1)). Courts and Guidance emphasis that it is important to focus on what an individual cannot do, or can only do with difficulty, rather than on the things that he or she can do. 'Normal day-to-day activities' means activities that are carried out by most men or women on a fairly regular and frequent basis. The Schedule1 to the EqA provides the meaning of long-term. The statutory definition of disability in EqA represents the medical model, focusing as it does on the functional limitations of a person. However, the definition of disability interpreted and applied so as to not frustrate the principle of non-discrimination as far as possible.