05 Nov 2019
The Employment Appeal Tribunal (EAT) has ruled that, when evaluating if an impairment should be classed as ‘long-term’, and therefore a disability, organisations should determine the likelihood of it recurring at the time of the potentially discriminatory act.
This is a complicated one, so if you want to see a summary you can skip ahead to our Too Long; Didn’t Read section here.
Parnaby v Leicester City Council
The Equality Act 2010 protects all employees from discrimination on the grounds of disability.
It outlines that an employee is disabled if they have a mental or physical impairment.
The impairment must have a substantial or long-term adverse effect on their ability to carry out normal day-to-day activities.
An impairment will likely be viewed as ‘long-term’ if it has lasted for at least 12 months, or is likely to last for at least 12 months or over.
If the impairment is likely to recur then this will be treated as long-term.
Background to the case
The employee in this case was off work on long-term sickness absence for two separate occasions. He claimed to be suffering from depression brought on from work-related stress.
At the end of his second period of absence, which lasted seven months, the employee was dismissed for capability reasons.
Records from his GP outlined that the employee suffered from a ‘depressive disorder.’ He’d been taking prescribed antidepressants intermittently for over a year.
Following his dismissal, the employee didn’t regularly contact his GP regarding his mental health issues.
He later brought claims against his employer for unfair dismissal and disability discrimination. He outlined that his dismissal was the final act in a series of discriminatory incidents.
All parties accepted that the employee’s ‘depressive disorder’ could be considered a disability. However, as the impairment hadn’t lasted longer than 12 months, there was some debate over whether it was a legitimate disability.
What did the employment tribunal say?
At a preliminary hearing, the tribunal found that his impairment didn’t meet the definition of a disability. Therefore, his claim couldn’t proceed.
They accepted that the employee did have an impairment. They accepted that his impairment was the result of work-related stress. And, they accepted that this impairment had an adverse effect on his ability to carry out normal day-to-day activities.
Despite this, the ET held that this impairment couldn’t be classed as ‘long term’.
Why? Because his two periods of absence hadn’t lasted longer than 12 months. As it didn’t last longer than this period, they considered instead if it was likely to recur.
However, the difficulties he faced at work didn’t seem to affect him outside of work. If anything, the employee’s condition appeared to have improved following his dismissal.
In forming their decision, the tribunal looked at the position that the employee had held at the time of his dismissal. They reached the conclusion that, because the dismissal appeared to limit or remove his impairment, it was unlikely to recur.
The employee appealed against this decision to the Employment Appeal Tribunal (EAT).
What did the Employment Appeal Tribunal say?
The EAT upheld his appeal, remitting the case to a new tribunal for further review.
Why did they reach this decision? The EAT outlined that the question of whether the employee’s impairment was likely to last for 12 months or more, or likely to recur, should’ve been considered at the time of the discriminatory acts in question.
His discrimination claim was largely based on occasions that had occurred prior to the dismissal. The likelihood of his condition recurring should’ve been considered at these specific times.
The tribunal erred, as they assumed the future impacts of his impairment were time limited by his dismissal. They believed that the dismissal served to remove the cause of his stress.
The EAT held that, when considering if an impairment is likely to last at least 12 months or will recur, the key question is whether it ‘could well happen’.
The tribunal shouldn’t have assumed that removing the cause (by dismissal) would remove the impairment. ‘Could well happen’ means that such an event is ‘more probable than not’.
Take care to determine whether an impairment is likely to last month than 12 months, or recur. Especially when making a decision related to a potential disability, including dismissal for capability.
The key aspect tribunals will consider is whether the impairment was likely to recur at the time of the potentially discriminatory acts. A discrimination claim may not just be limited to a dismissal.
This dismissal may cause the condition to improve. However, tribunals won’t necessarily find that the ‘long term’ aspect of disability discrimination hasn’t been met in these situations.
Too Long; Didn’t Read
When assessing whether an impairment is a disability (or not), one of the considerations is the duration of the impairment. If it lasts longer than 12 months, or is likely to recur, then it’s a legitimate disability.
In this case the employee claimed to be depressed as a result of work-related stress. Depression is, fundamentally, a disability. After an extended absence, the employee was dismissed due to lack of capability. The employee took his employer to tribunal for discrimination.
An important point to note is that the dismissal wasn’t the only occasion the employee claimed to have experienced discrimination in the workplace.
The tribunal ruled in favour of the employer. They did this because the employee’s period of absence lasted less than 12 months and when he was not at work his health was much better. So, instead of assessing whether his impairment was a disability by duration (it wasn’t) they assessed whether it was likely to recur. They found that it wasn’t, largely because, again, his health improved outside of work.
The employee appealed the ruling at the EAT. They found in favour of the employee. The reason for this ruling was because of the multiple occasions of alleged discrimination the employee had experienced. The original tribunal only assessed whether the employee’s disability was ‘legitimate’ at the time of the dismissal / alleged discrimination. They hadn’t taken into account the many other instances. As a result the EAT sent the case to a fresh tribunal for review.
So what’s the takeaway from this case? Put simply, ensure you thoroughly assess whether an impairment constitutes a disability—especially when claims of discrimination are being made.
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