In order to satisfy the legal definition of ‘disabled’ in the Equality Act 2010, an impairment must have a substantial and long-term adverse effect on an employee’s ability to perform day to day activities. To be ‘long-term’, the condition must have lasted, or be likely to last, at least 12 months. In Nissa v Waverly Education Foundation, the Employment Appeal Tribunal looked at how to assess the meaning of ‘long term’ when a condition has not yet lasted for 12 months.
The employee was a teacher. She had symptoms of fibromyalgia from December 2015 but was not diagnosed until August 2016, when her employment ended. She brought claims for disability discrimination. The employer disputed that her fibromyalgia had either a substantial or a long-term adverse effect. The material period for the tribunal to consider was December 2015 (when her symptoms began) to August 2016 (when employment ended). This period was less than 12 months. Consequently, the employment tribunal had to assess whether the condition had been ‘likely to last’ at least 12 months in that period, to see if she met the ‘long-term’ element of the test.
The tribunal looked at medical reports from the period, none of which referred to the condition being long-term. They noted that the employee was not diagnosed with fibromyalgia until August 2016. Medical evidence from October 2016 suggested her condition might improve over time. The employment tribunal therefore found that her condition had not been ‘likely to last’ at least 12 months. The Employment Appeal Tribunal disagreed and said that this was the wrong approach. The tribunal had concentrated too much on when the employee was diagnosed with fibromyalgia rather than the effect of the impairment. In considering medical evidence from October 2016 (saying her condition might improve), the tribunal had looked at the situation with the benefit of hindsight rather than based on the evidence from the material period (December 2015 to August 2016). Another employment tribunal panel will look at the case afresh.
It is important for employers to note that the effect of an impairment is often more important than a diagnosis. Employers should also remember that the legal definition of disability can be met if a condition is likely to last 12 months, even if it has only lasted a much shorter period.
Astons Solicitors
March 2019