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Disability discrimination: judging whether an adverse effect is 'long term'
Parnaby v Leicester City Council
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.
The law (s. 6 of the Equality Act 2010) defines a disability as a mental or physical impairment which has a substantial and long-term adverse effect on a person’s 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 (Sch. 1, para. 2)
Mr Parnaby was dismissed in July 2017 for capability because of his long-term sickness absence. He’d had two substantial periods off work with work-related stress (between April and May 2016 and between January and July 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 claimed disability discrimination and that his dismissal was the last act of discrimination. It was accepted that this would fall within the definition of disability, but the question was whether it was long term and had a substantial and adverse effect. At a preliminary hearing, a tribunal held that he was not disabled because, while he met the other criteria in s. 6, the adverse effect of his impairment was not long term – there having been a break between May 2016 and January 2017 so the two periods were distinct and had not lasted for at least 12 months. In particular, the tribunal held that the second period of absence was a reaction to workplace difficulties which did not manifest themselves when he wasn’t at work. It also noted that there was limited communication between Mr Parnaby and his GP (ad hoc correspondence only stating that he was struggling ‘on and off’), and that Mr Parnaby’s condition had improved when he was dismissed. He appealed.
The appeal was allowed (and sent back to the tribunal to reconsider).
Where the tribunal had gone wrong was to look back at what had actually happened when working out the likely effect – likelihood is not something to be determined by hindsight.
The question of whether Mr Parnaby’s impairment was likely to last for 12 months (or likely to recur) should have been assessed at the time of the acts in question. His dismissal came after many of the acts he complained of (the OH referral, application of the employer’s absence management procedure and failure to make reasonable adjustments) and, as such, his dismissal should not have been considered. The tribunal incorrectly assumed that the likely future duration of his impairment and its impacts would be time limited by his dismissal which removed the source of the impairment. The tribunal should have considered whether the impairment was likely to last 12 months or whether it might recur in the future. It was not open to it to make an assumption about whether removing the stress would remove the impairment. The statutory 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.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2019/0025_19_1907.html
Although the claimant had workplace stress, which is unlikely to be a ‘disability’, this had led to a depressive disorder which can be. Judging whether a condition is long term is a tricky area and tribunals, let alone employers, can get it wrong, see Nissa v Waverley Education Foundation Ltd.