When is a person disabled in the legal sense? The law considers that a person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day to day activities.
The cases in this area show the difficulties though around questions of disability such as how substantial is substantial and how long does long-term need to be?
Whilst we know that “substantial” is supposed to mean “more than minor or trivial” and “long-term” means lasting for at least 12 months or likely to last for at least 12 months or likely to recur, this does not prevent tricky questions from arising in defining a disability.
And it is a key question.
Employers need and want to know whether one of their employees is disabled. If they are, they need to be considering reasonable adjustments in the workplace and doing everything possible to understand the impact that a disability is having on a person’s work.
Employees need to be confident also that they can get their case off the ground since employers will often seek to challenge whether an employee is disabled as a tactical starting point in a Tribunal case. If an employee cannot prove this, the case is over before it has begun.
What if an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day to day activities? Is it to be treated as continuing to have that effect if that effect is likely to recur?
Dismissal for long term absence
The Employment Appeal Tribunal grappled with these questions in the recent case of Parnaby v Leicester City Council
The employee in that case suffered two distinct phases of work-related stress: the first in April-September 2016 and then again in January-June 2017. These episodes resulted in the employee being treated by a GP for a depressive disorder.
In June 2017, the employee was dismissed because of his long-term sickness absence, having been unable to work for 8 out of the past 16 months. It was claimed at the Employment Tribunal that this amounted to an act of disability discrimination.
Disability – how long is long term?
The key question in the case was whether the work-related stress was long term, that is, had it:
- lasted for at least 12 months; or
- was it likely to do so; or
- or was it likely to recur?
The Employment Tribunal found that the episodes did not form a continuous period of 12 months, and that since the Claimant’s condition had improved since his dismissal, it was not long-term. The disability threshold, therefore, was therefore not met.
On appeal to the Employment Appeal Tribunal, it was found that whether an adverse effect is ‘long-term’ must be judged at the time of the discriminatory act and is not something to be determined with hindsight.
When looking at whether the impairment is “likely” to recur, the Employment Appeal Tribunal found that the Employment Tribunal should have approached this question assuming that the employee would not have been dismissed.
In other words, it should not have taken into account the fact that the Claimant’s condition had improved since dismissal.
This makes sense where there is work related stress. Getting away from a stressful working environment is fairly likely to lead to an improvement in stress and anxiety.
But this should not be factored into the test for defining disability.
As such, “likely” should be interpreted as meaning that “it could well happen” (not that it is more likely than not to happen) at the time of the discriminatory acts in question.
What can employers take away from this?
The key points are:
- Look at each limb of the test for disability one by one;
- Likeliness of recurrence is to be determined at the time of the discrimination even without the benefit of a crystal ball;
- Recurrence of a condition is as important a factor to consider as anything else;
- Workplace stress in itself may not necessarily be a disability – in this case, the stress was the cause of the depressive disorder which was the disability.