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Disability discrimination: when is a condition “long term”?

The Employment Appeal Tribunal in the case of Nissa v Waverly Education Foundation Ltd has considered the definition of “disability” and in particular, the approach to be adopted to the determination of “long-term”.

Background

The Claimant worked as a Science Teacher for Waverly Education Foundation (“the Foundation”).

Since December 2015, the Claimant had suffered from physical impairments which were later diagnosed as Fibromyalgia and ‘Mental Distress’ on 12 August 2016.

The Claimant resigned with effect from 31 August 2016. She claimed that her condition had caused her to suffer from substantial and long-term adverse effects and she submitted a claim of disability discrimination.

The Foundation disputed that the Claimant was a disabled person.

The Law

For the purposes of the Equality Act 2010, a person is classed as having a disability if they have:

  1. a physical or mental impairment; and
  2. the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

“Long term” means that the effect has lasted or is likely to last for at least 12 months.

It was accepted that the Claimant had an impairment but the Employment Tribunal needed to decide whether the impairment was substantial and long term.

Decision

The Employment Tribunal (“ET”) concluded that because the Claimant’s diagnosis was not made until August 2016 (just before her employment ended) and her medical advisors had suggested that the condition may improve, the effects could not be classed as long term.

The ET also held that the effects of the Claimant’s impairments were not substantial. They accepted that they had some adverse effects, but held that the Claimant’s evidence failed to demonstrate the precise nature of the effects.

The Claimant appealed to the Employment Appeal Tribunal.

The Employment Appeal Tribunal (“EAT”) held that the ET’s approach was too narrow. It held that when considering whether the Claimant’s impairments were long term, the ET should have focused on the impairments and their effects rather than the diagnosis. When considering if a condition could last for 12 months the correct approach was to ask “whether it could well happen”.

The EAT also held that when considering whether the effects of the Claimant’s impairments were substantial and adverse, the ET failed to demonstrate that they had looked properly at the evidence. If the ET had considered the evidence as a whole, including the Claimant’s evidence that daily tasks were “extremely difficult, painful and exhausting” it would have been clear that the effects of the Claimant’s impairments were indeed substantial and adverse.

Comment

When looking at whether an impairment could be long term, employers need to take a broad approach and should not focus solely on a diagnosis. The impairment, its effects, and whether the condition “could well” last 12 months should be the main focus. Furthermore, when considering whether an effect is substantial and adverse, all existing evidence needs to be taken into account as a whole.

The case has been remitted to a different tribunal for reconsideration.

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