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What counts as ‘long term’ in determining if an employee has a disability?

22 March 2019

The Employment Appeal Tribunal (EAT) has recently considered the meaning of “long term” and “substantial” when assessing whether a person is disabled for the purposes of the Equality Act 2010 in Nissa v Waverly Education Foundation Limited.

Ms Nissa had been employed by Waverly as a science teacher and resigned on 31 August 2016. She brought a claim for disability discrimination due to mental and physical impairments suffered as a result of fibromyalgia.

It was accepted that Ms Nissa had been suffering from physical and mental stress impairments from December 2015 until the termination of her employment in August 2016. As the period in question was shorter than 12 months, the relevant question was whether the impairment was likely to last longer than 12 months and whether the impairment caused a substantial adverse effect on her ability to carry out normal day to day activities (the relevant test for a disability under the Equality Act 2010).

The original employment tribunal (ET) held that there was no evidence to show this, basing its decision on there being no mention by Ms Nissa’s clinicians or therapists of whether the symptoms were likely to continue on a long term basis. Although her doctor had suspected that she may have fibromyalgia as early as March 2016, the formal diagnosis was not made until 31 August 2016. The ET also noted that the Consultant Rheumatologist had suggested that Ms Nissa’s symptoms may begin to improve after leaving Waverly.

The EAT held that the ET had not used the correct test. The correct test of whether the symptoms were likely to continue for 12 months was that it “could well happen”; the ET had applied too high a test. Additionally, instead of concentrating on when the diagnosis was given, the EAT held that the ET should have considered instead the effects of Ms Nissa’s impairments. It was whether the substantial effects of Ms Nissa’s impairments were long term which was the important consideration in determining whether or not she was disabled. The ET had also considered her symptoms with the mitigating effects of her medication but it should have considered the effect of her impairments on her day to day life without the medication.

The EAT noted that in addition to the evidence of substantial adverse effects set out in her doctor’s report, Ms Nissa had also had to take time off work due to her impairments which was itself evidence of the effect of these on her day to day activities and the ET had not taken either of these points into account.

For all the above reasons the case was remitted to a new ET to be reheard.

Comment

It can be difficult for schools to make an accurate assessment as to whether a staff member suffering from illness falls within the definition of “disability” under the Equality Act 2010. This case shows that it is important to consider all the facts available and be cautious in coming to any assessment; even where the impairment in question has lasted for less than 12 months. In many cases it will be safest for schools to make “reasonable adjustments” in respect of the employee concerned even where there is some uncertainty as to whether the condition is serious enough to be classed as a disability.

By Esmat Faiz

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