Disability discrimination and the definition of "long term"


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The Employment Appeal Tribunal (EAT) has considered the issue of how to judge "long term" for the purposes of the definition of "disability" in Nissa v Waverly Education Foundation. Under the Equality Act 2010 a disability is defined as a physical or mental impairment which has a substantial long-term adverse affect on the individual's ability to carry out normal day-to-day activities.

Mrs Nissa was employed by her employer as a Science teacher. She resigned on 31 August 2016 and later brought a claim for disability discrimination. She claimed that since December 2015 she had suffered from a physical impairment, which was ultimately diagnosed as fibromyalgia, as well as mental stress, and that this caused her to suffer a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities.

At first instance the tribunal found that the effects of Mrs Nissa's illness were unlikely to be long-term. It considered the period from December 2015 to August 2016, and found that none of her advisers (the various clinicians and therapists the claimant saw) had considered her condition long-term, that the diagnosis of fibromyalgia was not made until August 2016 and was subject to the caveat that her symptoms might slowly improve as she was no longer in the respondent's employment. Even if the effects of Mrs Nissa's impairment had been long-term, the tribunal would have found that she had failed to establish that they had given rise to the relevant substantial effect.

The EAT considered that the tribunal had taken the wrong approach and remitted the matter to a different tribunal for reconsideration. It held that, when it considered whether the effect of the impairments was long-term, the tribunal had focused on the question of diagnosis rather than the effects of the impairments. Instead of asking whether it "could well happen" that the impairment would be long-term, it had adopted too narrow an approach. The EAT then moved onto consider whether the effect of the impairment was "substantial". It found that the tribunal failed to look at all the relevant evidence, namely the claimant's doctor's report, which had detailed the effects of the claimant's impairments on her ability to carry out day-to-day activities; the wider medical evidence and the claimant's periods of sick leave.

Take note: Nissa provides helpful guidance on how to approach the issue of whether or not an impairment is likely to be long-term (something which will often have to be considered in cases where an impairment has not yet lasted 12 months). Where looking forwards to determine whether or not an impairment is long-term, the question is whether "it could well happen". The tribunal had focussed on the position prior to 31 August 2016 and should have adopted a broader approach, taking all the available evidence into account.

This article is taken from HR Law - March 2019.

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