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Disability Discrimination-when is a condition "Long term?"

28th February 2019

For any condition to amount to a “disability” under the Equality Act 2010 it must have a “substantial and adverse effect” on that person’s ability to carry out normal day-to-day activities. The law refers to this being a condition which has lasted for 12 months or is likely to last for 12 months. This can cause problems with conditions where the level of impairment can fluctuate, or the condition can go into remission for lengthy periods. We wrote about this topic in October 2018, but cases continue to come up where this matter causes problems to employers.

The Employment Appeals Tribunal (EAT) has given further clarification on this point in the recent case of Nissa v Waverly Education Foundation.

The case concerned a teacher, Mrs Nissa. From December 2015 she suffered from symptoms of fibromyalgia. However, the formal diagnosis of fibromyalgia was not made until the 12th August 2016. She resigned very shortly afterwards, with effect on the 31st August 2016.

Subsequently she brought a claim against her employer, asserting that they had committed disability discrimination against her, in which stated that her medical condition caused her to suffer for substantial and long- term adverse effects. The employer disagreed over the effect and if it constituted a “disability” under the Equality Act 2010. 

The Employment Tribunal that heard the case noted that the diagnosis had not been made until just before the resignation took effect, and that even then that in the following October it was stated that the symptoms may improve gradually now that she was no longer in employment. The Employment Tribunal therefore concluded that it could not be said that the condition was “likely” to have a substantial adverse effect for 12 months or more, and therefore not be “long-term.” The Employment Tribunal also noted that in any event they believed that Mrs Nissa was unable to show that the condition had a substantial effect.

On appeal the EAT concluded that the Employment Tribunal had followed the wrong approach. In cases where it is necessary to project ahead to decide if an impairment is “long-term” the relevant case law had stated that when considering whether a condition was likely to last 12 months or more, the correct approach is to ask if it “could well happen.” The EAT ruled that the Employment Tribunal in this case had focused too much on the question of the medical diagnosis, rather than look at the actual effects of the impairment and that the Employment Tribunal had adopted an approach that was too narrow. The EAT ruled that the Employment Tribunal had focused too much on the position before the 31st August, rather than looking at the reality of the risks involved, ie not properly focusing on the question “whether it could well happen.” The Tribunal should look at the evidence then available, rather than look later with the benefit of hindsight. The Tribunal also failed to take proper account of the actual evidence from Mrs Nissa on the difficulties and problems that she faced in dealing with daily tasks, which were noted to be “extremely difficult, painful and exhausting.”

This case demonstrates that employers need to look not just at the formal medical diagnosis, but also at the actual level of impairment that the condition creates for the individual. Employers need to appreciate that a condition can still amount to a disability under the legislation even if the severity fluctuates. In deciding if a condition will continue to have substantial adverse effects employers need to ensure that they look at the question from the view of if it “could well happen,” which is a lower threshold than “definitely will happen.” So, in getting medical advice the employer needs to be careful how it phrases the questions for its medical advisers.   

If you need any further advice on any matter raised in this article do not hesitate to contact us at Hallett Employment Law Services Ltd.

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