What is 'long term' for disability purposes?

Nissa v Waverley Education Foundation Ltd

EAT clarifies how to interpret ‘long term’ for the purpose of the definition of disability.

Background

Mrs Nissa, a teacher, began suffering from symptoms of fibromyalgia in December 2015. The symptoms include fatigue, muscle stiffness, sensitivity to pain and difficulty sleeping. Following her resignation in August 2016 she brought a disability discrimination claim against the school, 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. Although her employer didn’t dispute that she was suffering from these conditions, it did not accept that she was disabled under the Equality Act. In particular, it argued that such effects as Mrs Nissa suffered were not long term. Section 6 of the Act states that a person has a disability if they have a physical or mental impairment, which has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities.

A tribunal dismissed her claim. She was not ‘disabled’ because her impairments were neither long term nor substantial. The medical diagnosis was not made until just before she resigned. The tribunal focussed on her diagnosis and the fact that a consultant had expressed hope that her condition would slowly improve. Therefore, it could not be said to have been ‘likely’ that the effects would be long term. Moreover, although Mrs Nissa’s impairments had some adverse effect, her evidence was too vague and imprecise to demonstrate that the effect was substantial. Mrs Nissa appealed.

EAT decision

Her appeal was allowed.

Sending the case back for reconsideration, the EAT said that the tribunal had approached this in the wrong way.

The EAT followed the approach of the House of Lords in the 2009 case of SCA Packaging Ltd v. Boyle. When considering whether something would be likely, it is important to ask if it ‘could well happen’, i.e. tribunals should ask if the impairment ‘could well last more than 12 months, rather than ask if it is ‘probable. The tribunal had incorrectly focused on her diagnosis (which came late in the relevant period) rather than the effects of her impairments.

Keeping its focus on the position before Mrs Nissa resigned, the tribunal 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.

The EAT also held that the tribunal’s decision on the substantial adverse effect was unfounded. It did not take into account relevant evidence, including Ms Nissa’s evidence of her difficulty in carrying out her daily chores.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2018/0135_18_1911.html

Comment

Trying to determine whether an employee’s impairment satisfies the s. 6 definition of disability is far from easy, even where, as in this case, you have medical evidence. HR should step back and take a broad view and look at the picture as a whole. Conditions which are difficult to diagnose and have a variety of symptoms can make it difficult to say with certainty whether the legal definition of disability has been met. What counts as ‘long term’ should be interpreted broadly.

While the diagnosis of a specific condition will be relevant, it is not determinative of whether the impairments resulting from that condition are long term or substantial. Indeed, the effect of an impairment is often more important than a diagnosis. Where you’re uncertain, take a proactive approach and refer staff for a medical assessment as soon as you are aware of the apparent condition.