The Employment Appeal Tribunal (EAT) considered whether a tribunal had been wrong to conclude that an employee was not disabled, on the basis that his impairment had lasted for only six months.

Parnaby v Leicestershire City Council UKEAT/0025/19

Facts

The claimant in this case brought a claim for disability discrimination following his dismissal. He had suffered a period of depression for around six months, caused by work-related stress. The employment tribunal held that he was not disabled on the basis that whilst his impairment had a substantial adverse effect on his ability to carry out day to day activities, it was not long term and so did not satisfy the statutory definition of a disability. The claimant appealed to the EAT.

EAT decision

The EAT upheld the claimant’s appeal. The tribunal had been wrong to conclude that he was not disabled under the Equality Act 2010 on the basis that the likely duration of his impairment would be limited due to the fact that his dismissal had removed the cause of the work-related stress. The tribunal should have considered whether, at the time of the act(s) of discrimination, the condition was likely to last for 12 months or more, or whether it was likely to recur in the future. It should not be assumed that because the reason for the stress had been removed as a result of his dismissal, the impairment would be timelimited. Likelihood is not something to be determined with hindsight; the correct test to apply is whether recurrence of the condition could well happen in the future. The case was remitted to be reheard.

Consequences

This case illustrates one of the difficulties in assessing whether an individual is disabled for the purposes of the Equality Act 2010, particularly when the impairment is fluctuating in nature and when it is either caused or exacerbated by conditions in the workplace. A tribunal should assess whether the individual’s condition satisfies the definition of disability at the time of the events complained of, not with the benefit of hindsight. In such cases, it is usually best for employers to err on the side of caution and assume an individual is disabled, making adjustments to relevant procedures as appropriate.

This article is from the September 2019 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals.