Disability Discrimination – when is an employee disabled?
Nick Jones, specialist employment solicitor and Head of Gregg Latchams’ employment team reports on the recent case of Parnaby v Leicester City Council, where the employment tribunal considered whether the test of ‘disability’ had been correctly applied.
A person is disabled if she has a physical or mental impairment which has a substantial and long-term adverse effect on her ability to do day to day activities. To be ‘long-term’ an impairment must have lasted, or be likely to last, at least 12 months. An impairment can be treated as continuing when it has stopped if it is likely to recur. Likely means it is more probable than not.
In Parnaby v Leicester City Council, the employee was a head caretaker. He was dismissed for long term sickness absence due to work related stress. The employee brought several discrimination claims. The tribunal’s first job was to decide if he was disabled. They found that his condition did not meet the ‘long-term’ requirement. His work-related stress had not lasted 12 months by the time his employment ended, and he hadn’t seen his GP since then. His recovery coincided with his employment ending. Therefore, it wasn’t long term.
The EAT said the tribunal had applied the test incorrectly. The tribunal had looked back at the employee’s position with the benefit of hindsight, noting his illness had stopped at the point of dismissal. This was the wrong approach. They should have considered what the position had been at the time when the decisions were taken by the employer, before the employee’s dismissal. At that point, was the employee’s impairment likely to last 12 months or recur? The employee’s dismissal had to be disregarded when applying this test because it was his dismissal and the matters leading up to it which the employee said were discriminatory. The case was sent back for a new tribunal panel to decide whether his impairment was long term.
This case shows how complex the disability test can be, tripping up even experienced judges. Just because someone’s impairment hasn’t lasted 12 months yet does not mean they do not meet the disability test. Take care when contemplating dismissal for sickness absence relating to work related stress and ensure you have done everything you can to address the issue first.
If you need assistance with managing disability issues in the workplace, or guidance on employers’ duties toward disabled employees, please contact Nick Jones or Cecily Donoghue in our Bristol office.