The Definition of Disability
A recent Employment Appeal Tribunal decision highlights the approach Tribunals must take in assessing whether a condition amounts to a disability under equality law.
Background of the Case
A person will be considered to have a disabled under the Equality Act if they suffer from a physical or mental impairment that has a substantial and long-term adverse effect on the person's ability to carry out normal day-to-day activities.
The effect of an impairment will be long term if it has lasted for at least 12 months or is likely to last for at least 12 months.
This case is about whether an impairment was likely to last for at least 12 months. If so, the claimant would be classed as disabled.
What Were the Facts of the Case?
In the case of Morris v Lauren Richards Ltd, the claimant, Miss Morris, brought a claim for disability discrimination against her former employer. The claim related to alleged discrimination at work up to and including her dismissal. At the time of her dismissal the claimant had been suffering from anxiety for around three-and-a-half months. The question arose as to whether the effects of the impairment were likely to last for 12 months.
The Tribunal found that the claimant's anxiety was caused by her issues at work and that as her employment had terminated, her anxiety was not likely to last for 12 months.
The claimant appealed to the EAT.
What Did the EAT Determine?
The EAT allowed the appeal. The threshold for likelihood is low. The Tribunal should have considered the likelihood, at the date of each act of alleged discrimination, that the effect of the impairment would last at least 12 months. It was an error to take into account the effect of the claimant's subsequent dismissal on her impairment. To do so would be to consider events that took place after the alleged acts of discrimination.
The EAT has remitted the question of whether the condition was likely to be long term back to the Tribunal.
What Can Employers Learn From This Decision?
This decision is a useful reminder of the low threshold to be applied in considering the likelihood of the effects of an impairment lasting for at least 12 months in the context of the legal definition of 'disability'. Employers may find it difficult to determine whether an employee is disabled for the purposes of equality law. It will often be sensible to take medical advice as part of the reasonable and effective management of any employee with a condition that could amount to a disability.
