The Equality Act 2010 protects all employees from discrimination on the grounds of a disability. For the purposes of the legislation, an employee will be disabled if they have a mental or physical impairment and that impairment has a substantial or long-term adverse effect, on their ability to carry out normal day-to-day activities.
An impairment will likely be viewed as ‘long-term’ if it has lasted for at least 12 months or is likely to last for at least 12 months or over. It will also be treated as continuing to have this effect if the effect is likely to recur.
The employee in this case was off work on long-term sickness absence for two separate occasions. He claimed that he was suffering from depression that had been brought on from work related stress. At the end of his second period of absence, which lasted for seven months, the employee was dismissed for capability reasons. By the time of his dismissal, records from his GP outlined that the employee suffered from a ‘depressive disorder’ and that he had been taking prescribed antidepressant medication on an intermittent basis for over a year.
He later brought claims to the employment tribunal (ET) for unfair dismissal and disability discrimination, outlining that his dismissal was the final act in a series of incidents. Although all parties accepted that the employee’s ‘depressive disorder’ could be considered a disability for the purposes of the Equality Act 2010, a question was raised as to whether it met the criteria of ‘long-term’.
It should be noted that, following his dismissal, the employee did not regularly contact his GP regarding his mental health issues.
At a preliminary hearing, the tribunal found that his impairment did not meet the definition of a disability, meaning his claim could therefore not proceed.
They accepted that the employee did have an impairment that was the result of work-related stress, and that this impairment had a substantial adverse effect on his ability to carry out normal day-to-day activities. Despite this, the ET held that this impairment could not be classed as ‘long term’. His two periods of absence had not lasted longer than 12 months and, in particular, his workplace difficulties did not seem to affect him when he was not at work. If anything, his condition appeared to have improved following his dismissal, especially as there had been limited communication between the employee and his GP.
In forming their decision, the tribunal looked at the position that the employee had held at the time of his dismissal, reaching a conclusion that the dismissal could have served to limit or remove his impairment. Therefore, it was not likely to recur.
The employee appealed against this decision to the Employment Appeal Tribunal (EAT).
The EAT upheld his appeal, remitting the case to a new tribunal for further review.
In forming their decision, the EAT outlined that the question of whether the employee’s impairment was likely to last for 12 months or more, or likely to recur, should have been considered at the time of the discriminatory acts in question. His discrimination claim was predominantly based on occasions that had occurred prior to the dismissal, meaning the likelihood of his condition recurring should have been considered at these specific times. The tribunal had erred by assuming that the future impacts of his impairment would be time limited by his dismissal just because it had served to remove the cause of his stress.
The EAT held that, when considering if an impairment is likely to last at least 12 months or will recur, the key question is whether it ‘could well happen’. The tribunal should not have assumed that removing the cause of the stress by dismissing the employee would remove the impairment. ‘Could well happen’ means that such an event is ‘more probable than not’.
When making any decision that is related to a potential disability, including dismissing an employee on the grounds of capability, organisations should take care to determine whether the impairment is likely to last more than 12 months, or recur, following that specific decision.
The key aspect tribunals will consider is whether the impairment was likely to recur at the time of the potentially discriminatory acts; a discrimination claim may not just be limited to a dismissal. Although this dismissal may cause the condition to improve, tribunals will not necessarily find that the ‘long term’ aspect of disability discrimination has not been met in these situations.