The Employment Appeal Tribunal gives guidance on the definition of disability in the Equality Act.
One of the issues that we have with the Equality Act 2010 is that it is often not easy for a person with a mental health problem to be clear that they satisfy the definition of disability. We have other problems with the Equality Act as well, but we’ll leave those for another day.
Section 6 of the Equality Act says that 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 Act elaborates on 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.
In Nissa v Waverly Education Foundation Limited the Employment Appeal Tribunal (EAT) considered how 'long term' is to be judged for the purposes of the definition of disability.
Mrs Nissa was a science teacher employed by the Respondent until she resigned on 31 August 2016. She claimed that since December 2015 she suffered from symptoms of fibromyalgia and mental distress although a diagnosis of fibromyalgia was not made until 12 August 2016. In October 2016 Mrs Nissa’s neurologist had ventured that her symptoms might slowly improve now she was no longer in employment.
The Employment Tribunal (ET) had to consider whether Mrs Nissa was disabled under the Equality Act. This was a case where the impairment had not existed for 12 months at the time of resignation, so the ET had to consider whether it was likely to last at least 12 months. The ET noted that none of Mrs Nissa’s treating professionals had stated that her impairment was long-term, the diagnosis of fibromyalgia was not made until 12 August 2016 and that the neurologist suggested that her symptoms might improve. The ET therefore held that the effect of Mrs Nissa’s impairment was not long-term. It went on to hold that even if it were, the evidence did not suggest that it gave rise to a substantial effect.
The EAT allowed Mrs Nissa’s appeal. In determining whether the effect of her impairment was long-term the ET had focused on the question of diagnosis rather than her impairment. In terms of whether the effect of the impairment was ‘likely’ to last at least 12 months, the ET took a narrow view; it should have taken a broader view of the evidence and interpreted likely as meaning that ‘it could well happen’ that the effect of her impairments would last 12 months. Further, while the ET had stated that it was not relying on hindsight to make its conclusions, this is clearly what it was doing in relying on the neurologist’s suggestion that the symptoms would improve.
The EAT went on to deal with the ET’s conclusion that Mrs Nissa had failed to establish that her impairment had not had a substantial effect on her ability to carry out day to day activities. This finding could not stand either. There was plenty of evidence both in the form of Mrs Nissa’s own testimony and the evidence of medical professionals to suggest that the symptoms of her fibromyalgia and mental distress had a more than trivial effect on her ability to carry out day-to-day activities. The ET had also not considered the ‘deduced effects’ of her impairment, that is to say how she would have been had she not been taking medication.
This is a welcome judgment, emphasising as it does the need to look at the broader picture when considering whether a person’s impairment is likely to satisfy the long-term element of the definition of disability. Diagnoses do have some evidential value but even so it should always be borne in mind that they are only an opinion offered at a particular point in time. A person may have had an impairment for a considerable amount of time before a diagnosis is put forward and practitioners should not think of a diagnosis as marking the starting point of when an impairment existed. This, of course, will be common sense to most people with familiarity with mental health conditions, but many employment lawyers probably need the EAT to spell this out!
Mrs Nissa was represented by an experienced lawyer who skilfully brought the complex provisions of the Equality Act, the extensive case law and guidance to the EAT’s attention to argue that Mrs Nissa satisfied the definition of disability. Most situations when you would want the protection of the disability provisions of the Equality Act (like when you are off sick from work, needing reasonable adjustments or facing dismissal to name but a few) you would likely not have an experienced discrimination lawyer at your disposal. It can be terribly difficult for the individual to be clear that their mental health problem, for example, amounts to a disability. How long are the effects likely to last? Are they likely to recur? How can you be sure what the effect of your condition would be if you weren’t taking medication? What evidence should you seek to demonstrate any of these things?
In Ireland and Australia there is no requirement that a condition has to be ‘long-term’ to gain the protection of their disability discrimination legislation. People can experience debilitating short term conditions, including mental health ones. Why should they be shut out from protection? Until such time as the Equality Act is amended, however, we are stuck with the requirement that the effects of impairment are long-term as defined. Nissa is a welcome judgment, but legislative reform would be more welcome.