The Equality Act 2010 makes it unlawful to discriminate against employees because of a disability. For the purposes of the Act, a person has a disability if they have a physical or mental impairment, and that impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
An impairment will have a “long-term” effect only if it has lasted for at least 12 months, or it is likely to last at least 12 moths, or it is likely to last for the rest of the employee’s life. This is straightforward where an employee has had a recognised disability for over 12 months but difficulties can arise in assessing whether a condition is “likely to last at least 12 months”.
What is meant by “long-term” in this context was considered by the Employment Appeal Tribunal (“EAT”) in the recent case of Nissa v Waverly Education Foundation Limited.
Mrs Nissa had been employed by Waverly Education Foundation Limited as a science teacher since September 2013. From December 2015, she suffered from symptoms of muscle stiffness and fatigue which was, ultimately, diagnosed as fibromyalgia on 12 August 2016. On 31 August 2016, Mrs Nissa resigned from her position.
Mrs Nissa brought a claim against her employer for disability discrimination, claiming that she was suffering substantial and long term adverse effects on her ability to carry out normal day-to-day activities, as a result of her fibromyalgia and mental distress.
Whilst her employer did not dispute the fact that Mrs Nissa was suffering from a physical and mental impairment, they argued that she was not disabled within the meaning of the Act because the impairment was not “long-term”.
The Employment Tribunal
The Tribunal ruled that Mrs Nissa did not satisfy the definition of a disabled person for the purposes of the Act for the following reasons:
- As Mrs Nissa’s diagnosis of fibromyalgia was not made until August 2016, and was subject to a caveat that the symptoms might slowly improve after her employment had ceased, the Tribunal concluded that the condition was not “long term”.
- The Tribunal considered that Mrs Nissa had failed to evidence the actual effect of her impairment on her day-to-day life and, as a result, she had failed to establish that they had given rise to a “substantial effect”.
Mrs Nissa appealed both findings to the EAT.
The EAT allowed the appeal on both grounds and criticised the Tribunal for adopting a narrow approach by focussing on Mrs Nissa’s medical diagnosis rather than the effects of her impairment.
The EAT clarified that the correct position in cases where it is necessary to look forward to consider the longevity of an impairment should be to consider the reality of the risk (i.e. whether it “could well happen” rather than whether it was “likely” to happen). This requires taking a broad view of the evidence, which is something the Tribunal failed to do in this case.
As for the question of whether her impairments were “substantial”, the EAT held that the Tribunal had failed to take account of relevant evidence, including Mrs Nissa’s testimony that carrying out her day-to-day activities was ‘extremely difficult, painful and exhausting’ and the doctor’s report, which supported this.
The EAT held that the correct approach would have been to take these factors into consideration, as well as considering the periods of sick leave taken by Mrs Nissa and her testimony, to create an overall assessment of the impact of the impairment.
The case was remitted to a different Tribunal for reconsideration.
While the facts of this case are somewhat specific, it does emphasise that when determining whether an employee is disabled within the meaning of the Act, the issue should not be approached too narrowly.
Schools need to look not just at an employee’s formal medical diagnosis, but also at the actual level of impairment that the condition creates for the individual.
Schools also need to appreciate that a condition can still amount to a disability under the legislation even if the severity fluctuates.
Where there is uncertainty, schools should generally take a proactive approach and refer their employees for a medical assessment as soon as they are made aware of the apparent condition.
Advice should also be sought to ensure compliance with the Act.