The EAT has held that an employment tribunal wrongly focussed on the likely impact of termination of employment on the individual's anxiety when assessing whether the effect of the anxiety was likely to last for 12 months.
Miss Morris claimed in the employment tribunal that she had been subjected to disability discrimination by her ex-employer, Lauren Richards Ltd. The company argued that she was not disabled. The Equality Act 2010 defines a disability as a mental or physical impairment which has a substantial and long term adverse effect on the employee's ability to carry out normal day to day activities. The effect of an impairment will be long term if, at the time of the alleged discriminatory act, it has lasted, or is likely to last for at least 12 months.
The tribunal held that Ms Morris suffered from anxiety, which was an impairment, and that this had a substantial adverse effect on her ability to carry out normal day to day activities. However, she did not have a significant history of poor mental health and she had only started to suffer from anxiety when she felt overwhelmed at work and experienced a loss of confidence. This was three and a half months before the acts of discrimination of which she complained. The tribunal had to decide whether her anxiety was likely to continue for another eight and a half months, and it found that the evidence did not establish that this was likely. It held that she was not therefore disabled.
In reaching its conclusion, the tribunal stated that Miss Morris's anxiety was centred on workplace issues and unlikely to last after her employment had terminated.
Miss Morris appealed to the EAT.
The EAT held that the tribunal should not have found that the cause of Miss Morris' anxiety was centred on her issues in the workplace and that there was nothing to suggest that her anxiety was likely to persist once she left the company's work environment. This had been a material part of the tribunal's reasons for finding that her anxiety was not likely to last for 12 months.
The appeal was upheld and the question of long term effect remitted to the employment tribunal to consider.
WHAT DOES THIS MEAN FOR EMPLOYERS?
This case is a reminder to employers that the threshold for showing that a condition is "likely" to last for 12 months or more is a low one, meaning this "could well happen". Employers who are assessing whether an employee is likely to be disabled (for example, when considering reasonable adjustments) should bear this in mind.