10 September 2019 #Employment
A claimant will be disabled, under the Equality Act 2010, if they have a mental or physical impairment and that impairment has a substantial and long term adverse effect on their ability to carry out normal day to day activities. An impairment is likely to be viewed as ‘long-term’ if it has lasted for at least 12 months, is likely to last for at least 12 months or it is likely to last for the rest of the person’s life. 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.
In Parnaby v Leicester City Council, the claimant was dismissed in July 2017 due to his long-term sickness absence. He had suffered with work related stress on two occasions, from 15 April – 31 May 2016 and from January to June 2017. The claimant claimed that his dismissal was unfair and discriminatory but also that various acts taking place before his dismissal were discriminatory on the grounds of disability. The ET viewed the two periods of absence as discrete events and found that neither was sufficiently long-term. In particular, the ET held that the second period of absence was a reaction to workplace difficulties and that, as there was limited communication between the claimant and his GP from mid-July 2017 until 10 April 2018 (ad hoc correspondence only stating that the claimant struggling ‘on and off’), the claimant’s condition had improved when he was dismissed.
The EAT upheld the Claimant’s appeal. It highlighted that ‘likelihood’ is not something to be determined with hindsight. The question of whether the impairment was likely to last for 12 months (or likely to recur) should be assessed at the time of the acts in question. It said that the dismissal came after many of the acts complained of and, as such, the dismissal should not have been considered. The ET did not demonstrate how it would have resolved the question of long term effect prior to any decision to dismiss and the EAT felt that this was not a case where it could safely conclude that there was only one answer. Further, the ET had made an assumption that dismissal would limit the claimant’s impairment and, as such, had not properly considered the question of recurrence. The EAT remitted the case to a different Employment Tribunal for a rehearing.
This case highlights the importance of assessing all elements of the test for disability at the relevant times and ensuring all the circumstances are considered in determining whether the impairment is likely to last for more than 12 months and/or likely to recur in the future.