The importance of the definition of disability under the Equality Act

Background

In July 2010 Mr Parnaby started working for Leicester City Council, as the head caretaker at the Leicester Creative Business Depot. During the course of his employment, Mr Parnaby experienced intermittent periods of absence due to work related stress. These periods of absence occurred from 15 April – 31 May 2016 and from January – June 2017.

Mr Parnaby’s medical records showed a diagnosis of depressive disorder; he was prescribed antidepressant medication on an intermittent basis following the first period of absence and continuously from June 2017. As a result of his condition, Mr Parnaby experienced sleep disruption, a lack of self-confidence, fluctuating appetite, fatigue and poor concentration; he described himself as a “shadow of his former self”. He was unable to carry out daily tasks and had isolated himself in his home.

During the second period of absence, Mr Parnaby’s medical records showed that there was no communication between him and his GP about his mental health issues from mid-July 2017 until 10 April 2018, other than him reporting that he had been “struggling on and off”.

Following a final capability meeting, Mr Parnaby was dismissed from his employment on 18 July 2017, as a result of his long-term sickness absence.

Mr Parnaby brought an Employment Tribunal claim alleging that his dismissal was unfair and amounted to disability discrimination.

The Employment Tribunal

Although there were inconsistencies in the evidence provided by Mr Parnaby, the Employment Tribunal (ET) accepted that he had suffered from work related stress, which significantly impacted his ability to carry out daily tasks during the periods of absence mentioned above. However, the ET found that Mr Parnaby’s difficulties “were a reaction to specific difficulties in the workplace. They did not manifest themselves when he was not at work…” and did not continue after his dismissal.

As such, the ET held that the impairment was not long term, as it had not lasted for twelve months; therefore, Mr Parnaby was not classified as disabled under section 6 of the Equality Act 2010.

The Employment Appeal Tribunal (EAT)

Mr Parnaby’s appeal was permitted to proceed on two grounds; firstly, whether the ET erred in focussing on whether the second period of illness had lasted 12 months, rather than considering whether, at the date of dismissal, the effects of the impairment were likely to last 12 months or to recur. Secondly, whether the ET had erred when assuming that, as the cause of Mr Parnaby’s impairment (difficulties in the workplace) had been removed, his condition was not likely to last for 12 months or to recur.

The EAT allowed Mr Parnaby’s appeal and held that the ET had failed to consider whether it was more probable than not that his impairment would recur in the future and failed to consider the likely effect of his impairment from the date of dismissal or whether it was likely it would continue for 12 months. The EAT held that the question of likelihood was not something to be determined with hindsight. The ET should have considered the question of likelihood at the time the relevant decisions were being taken, which was prior to the decision to dismiss. It was not for the ET to speculate about whether removing the cause of the stress would remove the impairment.

On this basis, the EAT remitted the case for re-hearing.

Comments

This case highlights the importance of addressing all four limbs of the definition of disability in a discrimination claim and considering the likelihood of an impairment lasting for at least 12 months or recurring in the future.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.