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At what point is a disability assessed?

Associate Solicitor, Helen Scott

The Employment Appeal Tribunal in the case of Parnaby v Leicester City Council has considered when is the right time to assess whether someone has a disability.

Background

The Claimant worked for Leicester City Council as head caretaker at the Leicester Creative Business Depot. He suffered from two periods of work-related stress, which led to him being absent for a long period on two occasions. The first absence was a month long and the second was 7 months long. As a result of these absences, the Respondent dismissed the Claimant on the grounds of capability.

The Claimant brought claims to the Employment Tribunal, including for disability discrimination on the basis that his condition amounted to a disability under the Equality Act 2010.

The Law

A person is considered disabled under the Equality Act 2010 if they have a physical or mental impairment that has a long term substantial adverse impact on their ability to carry out day-to-day activities.

“Long term” for the purposes of the definition means that the condition has lasted for, or is likely to last for, at least 12 months.  If the impairment ceases to have a substantial adverse effect at any point, it will be treated as continuing to have the effect if the effect is likely to recur. Whether something is likely to recur means it “could well happen”.

Decision

The Employment Tribunal found the Claimant did not have a “disability”. It held that although the Claimant’s condition did have a substantial adverse effect on his ability to carry out day-to-day activities, that it was not long-term because his condition was work related and had improved after the Claimant had been dismissed. The Claimant appealed.

The Employment Appeal Tribunal (“EAT”) upheld the appeal. In disagreeing with the Tribunal, the EAT held that it should have focused on the condition prior to the dismissal when assessing whether it could be considered as “long term” and whether at that point the impairment was likely to last 12 months or might recur in the future. The Tribunal had made an error by looking back at what happened after the relevant acts about which the complaint was made.

The case was remitted to the Tribunal for re-consideration of whether the Claimant’s condition was long-term for the purposes of the Equality Act 2010.

Comment

This case highlights the need for employers to carefully consider an employee’s condition and whether it may amount to a disability. In assessing whether a condition may be long term under the definition of disability, an employer must think about if it may be likely to last for, at least, 12 months, by looking forward at the relevant time.

The EAT’s approach produces a sensible result, as the Tribunal’s decision could have suggested to employers that the correct way to deal with employees who suffer from work related illness is to dismiss them with a view to improving their condition. Evidently, this approach would produce an unfair result for employees.

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