The Employment Appeal Tribunal has held that whether or not an impairment has a long-term substantial adverse effect should be assessed at the time of the discriminatory act and include consideration of whether the impairment was likely to last twelve months, or, where it has ceased to have such an effect, whether it is likely to re-occur (Mr E Parnaby v Leicester City Council, EAT)
Under section 6 of the Equality Act 2010 (EqA), a person is disabled if they have a physical or mental impairment that has a substantial and long-term adverse effect on that person's ability to carry out normal day-to-day activities.
The effect of an impairment is long-term if it has lasted for at least 12 months, is likely to last for at least 12 months, or is likely to last for the rest of the life of the person affected. If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to re-occur (Schedule 1, EqA).
In SCA Packaging Limited v Boyle , the Supreme Court clarified that, in considering whether something is 'likely', it must be asked whether it "could well happen". In 2002, the Employment Appeal Tribunal noted in Cruickshank v VAW Motorcast Ltd, that a "broad view is to be taken".
Mr Parnaby (the Claimant) was dismissed from his position as head caretaker for Leicester City Council in July 2017 on the grounds of capability, following two periods of long-term sickness absence due to work-related stress. He was dismissed following the second period of absence. He brought claims at the Employment Tribunal alleging that his dismissal amounted to disability discrimination and/or was unfair and complained of other acts of disability discrimination.
The Employment Tribunal (ET) found that the Claimant was not disabled under section 6 EqA. The ET considered that the Claimant suffered a physical impairment that had a substantial adverse effect on his ability to carry out normal day-to-day activities, but found that it was not long-term because:
- the first period of work-related stress in April 2016 was resolved by September 2016 and did not continue, so it had not lasted for at least 12 months and was not likely to recur; and
- whilst the second period of stress in January 2017 was a distinct period, the Claimant's mental health issues were a reaction to specific difficulties in the workplace which did not manifest themselves outside work. The ET considered that significantly reduced communication between the Claimant and his GP between July 2017 (when the Claimant was dismissed) and April 2018 indicated that there had been an improvement in the Claimant's condition from the time of his dismissal.
The ET concluded that the Claimant's impairment was not long-term and that he did not meet the definition of being a disabled person.
The Claimant appealed, asserting that the nature of his impairment was suggestive of recurrence, that this should be judged according to what was known at the time of the discriminatory act(s) and that it would be wrong for the ET to take the fact of dismissal into account when determining the likelihood of an impairment recurring.
Employment Appeal Tribunal
The EAT upheld the Claimant's appeal, finding that the ET was wrong to consider that the likely duration of the effects of the Claimant's impairment were limited by his dismissal, because the decision to dismiss the Claimant had not been taken at the date of the allegedly discriminatory act(s). The ET had failed to consider the position looking forward and had assumed a context that had not yet arisen.
The case was sent to be re-heard by a different ET to consider all the evidence and reach conclusions on whether the Claimant's impairment was likely (or could well happen) to last for at least 12 months, or to recur. The EAT reminded the ET to consider the likelihood of the adverse effect of the impairment lasting at least 12 months or recurring at the time the relevant decisions were being taken (which, on the facts of this case, were before the decision to dismiss).
Over the years, the correct approach to assessing whether or not a person is disabled under section 6 EqA has been the subject of much case law, as well as government guidance (Guidance on matters to be taken into account in determining questions relating to the definition of disability (2011)). This latest decision demonstrates the difficulty of applying the definition to physical or mental impairments that may perhaps 'peak and wane', or even be intrinsically linked to conditions in the workplace. The case is a useful reminder to employers that the correct question when considering whether or not an adverse effect is long-term is to ask whether, assessing all of the evidence available at the time, it is likely (i.e. could well happen) that the impairment suffered by an employee would either last for at least 12 months, or recur. If in any doubt, it is better to take a cautious approach and, where possible, make appropriate adjustments regardless, as a matter of best practice.
This article was written by Kirsten Oakes, Trainee Solicitor.