Summary: At what point should an assessment be made of whether an employee’s disability is long-term?
The EAT says at the time of the alleged discriminatory act. The question is whether the impairment is ‘likely’ to last for twelve months (or ‘likely’ to recur). (Parnaby v Leicester City Council, available here).
Background: An employee will be disabled, under the Equality Act 2010, if they have a mental or physical impairment and that impairment has a substantial and long term adverse effect on their ability to carry out normal day to day activities. An impairment is likely to be viewed as ‘long-term’ if it has lasted for at least 12 months, is likely to last for at least 12 months or it is likely to last for the rest of the person’s life. If the impairment ceases to have a substantial adverse effect at any point, it will be treated as continuing to have the effect if the effect is likely to recur.
Facts: Mr Parnaby, the employee, was dismissed in July 2017 for capability because of his long-term sickness absence. Mr Parnaby had suffered with work related stress on two occasions, from 15 April to 31 May 2016 and from January to June 2017. His GP records referred to his suffering from a depressive disorder and that he had been prescribed antidepressant medication, on an intermittent basis since May 2016 and continuously from June 2017.
Mr Parnaby brought Tribunal claims for unfair dismissal and disability discrimination, both on the grounds of his dismissal and acts prior to this (including an OH referral, application of the employer’s absence management procedure and failure to make reasonable adjustments). It was accepted that Mr Parnaby’s depressive disorder could fall within the definition of disability, but the question was whether it met the criteria of ‘long-term’ and a ‘substantial and adverse effect’.
At a preliminary hearing, a Tribunal found that Mr Parnaby’s condition did not meet the definition of disability, as the break between his two periods of absence from work were distinct and had not lasted for at least twelve months. This meant that the time of the act of discrimination, his dismissal, the impairment had not lasted for twelve months. This meant the adverse effect of his condition was not long-term. In particular, the Tribunal held that the second period of absence was a reaction to workplace difficulties which did not affect him when he was not at work.
Mr Parnaby appealed.
The EAT allowed the appeal. The EAT said that the Tribunal should not have assumed that the likely future duration of the impairment (at the time of dismissal) would be time limited by the employee’s dismissal, which would then remove the source of the impairment (i.e. the stress of work that caused the depression). That was the wrong analysis. The dismissal came after many of the acts he complained of and, as such, his dismissal should not have been considered.
The EAT said that the question was whether the impairment was ‘likely’ to last for twelve months (or ‘likely’ to recur) and, importantly, that this should be assessed at the time of each of the acts in question. The test to assess recurrence is a predictive one; to consider whether it ‘could well’ happen in the future. ‘Could well’ happen means ‘more probable than not’.
Implications: This case highlights the importance of assessing all elements of the test for disability at the time of each alleged discriminatory act. Also, it is important to ensure that all the circumstances are considered in determining whether the impairment is likely to last for more than twelve months and/or likely to recur in the future.