Employee Not Considered Disabled In Disability Discrimination Case
In a recent case, the Employment Appeal Tribunal (EAT) held that the Tribunal did not err in law in concluding that employee, Mr Seccombe, was not disabled or, if he was, that his employer did not have knowledge of that disability.
The Dismissal
Mr Seccombe was summarily dismissed from Reed in Partnership Limited (Reed) on performance grounds after around 18 months of employment. A few months prior to his dismissal he had begun a period of absence from work after suffering a breakdown which resulted from a traumatic event. Reed were aware of the impact that this incident had temporarily had on his mental health, but he had been deemed fit for work and had returned to work shortly before his dismissal for poor performance.
Prior to his employment at Reed, Mr Seccombe had suffered two previous periods of ill health relating to anxiety and depression. However, Reed was unaware of this history and, when joining Reed, Mr Seccombe had responded in the negative to a question in the equal opportunities questionnaire which asked him to confirm whether he had any health-related issues or impairments for which Reed might need to make reasonable adjustments. He also did not suggest that any problems in his performance arose from a mental health condition during the performance management process that resulted in his dismissal.
Following his dismissal, Mr Seccombe brought a claim in the Employment Tribunal alleging that he was disabled by reason of anxiety and depression and that his dismissal constituted disability discrimination. For his claim to succeed, Mr Seccombe's condition needed to meet the definition of disability set out in the Equality Act 2010, and his employer needed to have known (or it had to be reasonable to expect it to have known) that he was disabled.
The Equality Act 2010 provides that an individual will be disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on the individual's ability to carry out normal day-to-day activities. It is accepted that, in order to be long-term, a condition needs to have lasted or be likely to last for at least 12 months.
A Long-Term Adverse Effect?
The Tribunal held that Mr Seccombe was not a disabled person as, given that the effects of his breakdown had only lasted for a few months before he had returned to work, it did not consider that he had a mental impairment which could be said to have had a long-term adverse effect on his ability to carry out normal day-to-day activities during the period of his employment.
Mr Seccombe tried to assert, by reference to the previous episodes of anxiety and depression, that this had been an ongoing, and therefore long-term, condition. However, the Tribunal reviewed the GP notes which appeared to show two discrete periods of anxiety and depression several years apart, both of which had separate trigger events and neither of which had lasted more than a few months.
It concluded that, given the absence of reference to anxiety or depression in the medical notes in the lengthy intervening periods between the episodes, there was insufficient evidence to support this contention.
The Tribunal also concluded that, even if the claimant was disabled, given that he had not raised this during his employment, and indeed had confirmed the contrary, Reed did not know, and could not reasonably have been expected to know, that Mr Seccombe was disabled. Mr Seccombe appealed on the grounds of perversity.
EAT Decision
The Employment Appeal Tribunal held that there was no perversity in the Tribunal's decision and dismissed Mr Seccombe's appeal. In doing so it observed that the requirement that a disability must be long-term relates to the effect of the impairment, not merely the impairment itself.
The EAT also commented that what an individual said about their impairment is important when assessing disability - particularly during periods which are not covered by any medical evidence.
During such periods what an individual has told, or indeed not told, their employer or others about their condition may well be relevant, although this will be a matter of fact and degree, rather than of law.
What Can Employers Learn?
Whilst this case does not break new ground, it is a useful reminder that in order to meet the definition of disabled it is not sufficient that a person has an impairment that is long-term; the impairment must also have a substantial adverse effect on day-to-day activities that is long-term.
Knowledge of disability is also a pre-requisite for a successful claim of disability discrimination. Whilst employers should not close their eyes to the possibility that an employee is disabled, this case provides some assurance that where an employee has not raised their disability with their employer, and indeed has indicated they have no disability, the employer is unlikely to be found to have knowledge of the disability.
If you require advice regarding disability discrimination claims, please contact Lorna Scully in our Employment Law team on 0121 227 3719, or complete the form below.