The Equality Act 2010 (the EqA) is what gives people with disabilities legal protection from discrimination. To gain that protection you must first satisfy the definition of disability. Section 6 of the EqA says:
"(1) A person (P) has a disability if-
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities".
Schedule 1 of the EqA expands further on the question of what "long-term" means:
"(1) The effect of an impairment is long-term if-
(a) it has lasted for at least 12 months,
(b) it is likely to last for at least 12 months, or
(c) it is likely to last for the rest of the life of the person affected.
(2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur."
Mr Parnaby (P) was off sick with work-related stress from his work with Leicester City Council (LCC) between April and May 2016 and then from January to July 2017 when he was dismissed for long-term sickness absence. The evidence suggested that the two periods of absence were distinct from each other and not connected and that his health took a turn for the better after he was dismissed. He claimed that LCC had discriminated against him as a disabled person by failing to make reasonable adjustments and by dismissing him. LCC, however, disputed that he was disabled, and this was decided as a preliminary issue by the Employment Tribunal (ET).
The ET held that P's impairment was sufficient to amount to a disability, the only question was whether it was long-term within the meaning of the EqA. It found that the two periods of absence were not connected and arose from reactions to specific difficulties in the work place and which did not manifest when P was not at work. It also went on to observe that P's improvement in health coincided with his dismissal. In the circumstances it could not be said that P's impairment was either likely to last 12 months or likely to recur.
P appealed to the Employment Appeal Tribunal (EAT). The EAT upheld P's appeal. The ET had gone wrong in considering that the likely duration of P's impairment was limited by his dismissal. The correct approach for the ET to take is to look forward from the time that the alleged discrimination took place (in allegedly failing to make adjustments and the consideration of the issues that led to the dismissal) to assess likelihoods rather than looking back in hindsight. By using the dismissal to limit the duration of the impairment the ET "assumed the implementation of the very decision that was subject to challenge" and assumed "a context that did not arise until after the decisions which were the subject of the Claimant's complaints".
The EAT was clearly right to say that an employer cannot rely on what is alleged to be an act of discrimination to stop an impairment from amounting to a long-term one. It has been almost 25 years since legislation first introduced a definition of disability that required people to have a "long-term" impairment before they could gain the protection from the law, and still courts and tribunals are grappling with the definition.
As we explained in our last newsletter Mind believes that the definition of disability in the EqA as it stands does not serve people with mental health problems well. The requirement that an impairment be long-term is particularly problematic, given that many mental health problems are fluctuating and medical professionals are, understandably, reluctant to encourage people to think of their conditions as being likely to last for extended periods or likely to recur. Disability discrimination laws in Ireland and Australia do not require people to demonstrate that their impairment is long-term in order to be considered disabled. Their definitions are deliberately broad, which, according to post-legislative scrutiny of Australia's Disability Discrimination Act 1992 'avoids unproductive disputes over whether a person with a disability fitted a particular impairment category'. Under Irish and Australian disability discrimination law the focus is on whether a discriminatory act has occurred, rather than on the nature of the complainant's disability. This is the direction that Mind would like to see the EqA move.
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