A recent EAT, Nissa v Waverly Education Foundation, provides some guidance on what defines ‘long-term’ disability.
This certainly isn’t black and white, and the case has been remitted to a different tribunal for reconsideration, but it provides some guidance.
The following case summary was provided by John McMullen:
Mrs Nissa was a Science Teacher. From December 2015 she suffered from symptoms of fibromyalgia. She resigned, effective from 31 August 2016. She brought a claim for disability discrimination, claiming her impairment caused her to suffer a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities. The employer disputed this.
An employment tribunal noted that that a medical diagnosis of "fibromyalgia" was not made until 12 August 2016, and was subject to a caveat in October that her symptoms might slowly improve now she was no longer in employment. So it could not be said to have been "likely" that the effects would be long-term. Even if the effects of the Claimant's impairment had been long-term, the tribunal would, in the alternative, have found she had failed to establish that they had given rise to the relevant substantial effect.
Focussing on the effects rather than the diagnosis
But the EAT considered that the tribunal had taken the wrong approach. In cases where it is necessary to project forward to determine whether an impairment is long-term, the House of Lords in SCA Packaging Ltd v Boyle clarified that in considering whether something was "likely", it must be asked whether "it could well happen".
The tribunal in Nissa had focused on the question of the diagnosis rather than the effects of the impairment and had adopted too narrow an approach. Keeping its focus on the position prior to 31 August 2016 it should have looked at the reality of risk - whether it could well happen - on a broader view of the evidence available and not with the benefit of hindsight.
Substantial Adverse Effect
Nor could the tribunal's decision on "substantial adverse effect" stand. It failed to take into account relevant evidence, including Mrs Nissa's testimony that attempting to carry out many of her daily chores was "extremely difficult, painful and exhausting".
Paul Burton, Head of Employment, says “This case demonstrates that employers need to be careful when assessing whether or not a worker is going to recover from a medical condition quickly enough so it will not be a disability. “Could well happen” is a low threshold for the worker to get over, it only has to be a possibility that the medical condition will last longer than 12 months to enable them to show they are disabled and therefore potentially bring a disability discrimination claim”.
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 Kate or Paul will be happy to discuss it with you.