A person is disabled under the Equality Act 2010 if they have a physical or mental impairment that has a substantial and long term adverse impact on the person's ability to do normal day to day activities.
The impairment has a 'long term' negative effect where it has lasted, or is likely to last more than 12 months in total.
A recent disability discrimination case has said that, where an employee has been dismissed for capability reasons relating to work related stress and the employee argues that their dismissal was discriminatory, the relevant time to assess the likelihood of an impairment being 'long term' is before the dismissal.
Mr Parnaby was employed by the Leicester City Council. He had two periods of long term sickness absence, the most recent being from the months of January to June 2017. The reason stated for this absence was Mr Parnaby's depression as a result of work related stress. Mr Parnaby was dismissed in July 2017 for capability reasons related to his long-term sickness absence. Mr Parnaby argued the dismissal was an act of disability discrimination. Following his dismissal, Mr Parnaby did not frequently contact his GP regarding mental health issues.
The Employment Tribunal (ET) dismissed Mr Parnaby's claim. The ET accepted that Mr Parnaby had suffered from an impairment arising from work related stress and that the impairment did have a substantial adverse effect on his ability to carry out normal day to day activities. However, the ET found that the impairment was not 'long term' because his difficulties were related to the workplace and his condition improved on dismissal. Mr Parnaby appealed.
The Employment Appeal Tribunal (EAT) allowed the appeal. When assessing whether the impairment would likely be 'long term' the ET had focused on Mr Parnaby's position at the time of the dismissal, which was the alleged discriminatory act. By doing so, the ET had found that the dismissal would limit or remove his impairment. The EAT said that the ET should have instead focused on Mr Parnaby's condition prior to the dismissal when determining the likelihood of whether it could be considered "long term."
The EAT also confirmed that in considering the likelihood of the impairment lasting at least 12 months or recurring, the key question is whether it 'could well happen' which means whether it was more probable than not.
The EAT has remitted the case to a different tribunal for a rehearing.
This case is a useful reminder of the approach that the tribunal will take when assessing the likely duration of an impairment. Whilst dismissing an employee may cause their condition to improve (especially if the condition relates to work related stress), this does not necessarily mean that the 'long term' aspect of the disability definition will not be met.
Employers should be cautious when making decisions about the future of employees who have been absent due to long term sickness.