“They’ve only been off sick for a month”; “they never said anything about historic illness in their application form; “the occupational health report said they may be ok in a few weeks” ….. so how can they be disabled?
The above quotes, all genuine quotes received by us from employers, highlight the confusion surrounding disability discrimination and the tricky task of identifying when an individual can be classed as disabled under the Equality Act 2010. And the confusion is not surprising. For years the statutory test of disability has been debated in courts and tribunals with conflicting judgments arising about how and when a worker is deemed to satisfy the criteria of disability.
So how does a tribunal decide if an individual is deemed to be disabled under the Equality Act? As a reminder, the starting point is that the following essential questions must be satisfied:
- Does the individual have a physical or mental impairment?
- Does the impairment have an adverse effect on their ability to carry out normal day-to-day activities?
- Is that effect substantial?
- Is that effect long-term?
Whilst the first three points are worthy of articles in their own right, the final point is one that raises the most questions from employers. What exactly does “long term” mean? The Equality Act defines this as having lasted 12 months, being likely to last 12 months or being likely to last for the rest of the person’s life. How do you know if something is likely to last 12 months or forever? Can an employee be disabled if they are only off sick for a month or if an occupational health report says they may be ok in a few weeks?
In a timely judgment, a recent Employment Appeal Tribunal (EAT) hearing has clarified when an employee satisfies the test of “long term” under the Equality Act 2010. Unfortunately, the news is not good for employers.
Nissa v Waverley Education Foundation
In Nissa v Waverley Education Foundation, the EAT was asked to consider the approach taken when deciding whether an individual, who had not yet been unwell for 12 months, was disabled.
Mrs Nissa was a science teacher who worked for Waverley from September 2013. Following a period of illness, Mrs Nissa resigned her employment on 31 August 2016. Citing disability discrimination, Mrs Nissa brought a claim in the employment tribunal (ET) against Waverley.
In order to be successful in any claim of disability discrimination, Mrs Nissa had to satisfy the test of whether she was indeed disabled at the relevant time, namely during her employment. In her evidence, Mrs Nissa claimed symptoms of physical pain and mental distress dating back to December 2015. Through attendance with various clinicians and therapists, a medical diagnosis of fibromyalgia was eventually provided by a Rheumatologist on 12 August 2016, some two weeks before Mrs Nissa’s resignation. In its defence, Waverley argued that Mrs Nissa had not satisfied the definition of long term under the Equality Act and as a result, could not be classified as disabled under the Equality Act.
The ET originally sided with Waverley stating that it could not be said at any time during the period of employment that the condition would be long-term, given that the only information available to them was the medical diagnosis provided 2 weeks before the resignation. A sensible decision you may think. Unfortunately, the EAT did not think so.
On appeal, the EAT disagreed. In its judgment, the EAT criticised the ET’s approach, stating that it had focused on the actual diagnosis rather than the employee’s period of impairment. The employee had been suffering from the impairment for a number of months prior to diagnosis and, at the time her employment ended, there was no evidence of a future prognosis as the medical report from the Rheumatologist had not been received. The test to be considered, therefore, was not the timing of the diagnosis but whether the long-term effect “could well happen”.
Waverley also attempted to rely on later medical evidence in October 2016, stating that the employee may slowly recover. This evidence was provided outside of the period of employment and the tribunal was keen to point out that only evidence available at the time should be considered when considering whether a disability would be long-term rather than applying the benefit of hindsight.
This makes it clear that when employers consider if an impairment will be long-term because it is likely to last 12 months or the rest of the person’s life, “likely” should be taken to mean “could well happen”. This test is a much easier test for an employee to satisfy and, as a result, employers are automatically put on the back foot in disability discrimination claims.
What should you be doing now?
HR should ensure that all individuals who are in management positions are aware of their obligations under the Equality Act 2010.
When an individual is diagnosed, either through the NHS or through occupational health, clarity should always be sought regarding the period of impairment and future prognosis.
If you would like to understand more about the test for disability discrimination, my colleague Steve Conlay covered when an employer is deemed to have knowledge of an employee’s disability in February’s newsletter. Steve’s blog post can be read HERE.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.