• GL
Choose your location?
  • Global Global
  • Australia
  • France
  • Germany
  • Ireland
  • Italy
  • Poland
  • Qatar
  • Spain
  • UAE
  • UK

Disability Discrimination: When is an employee disabled?

03 October 2019
In the case of Parnaby v Leicester City Council the Employment Appeal Tribunal (“EAT”) considered how the question of whether a Claimant's impairment is long-term should be properly addressed.  

Background

The Claimant suffered from depression which was caused by work related stress. The Claimant was able to show that his impairment had a substantial adverse effect on his ability to carry out normal day-to-day activities; however, the Tribunal held that the Claimant was not a disabled person for the purposes of the Equality Act 2010 (“the Act”) on the basis that the impairment was held not to be long-term. The Tribunal took the view that when the Claimant was dismissed, this had removed the cause of the impairment, which was the work-related stress. At the time of the dismissal, the impairment had not lasted 12 months. The Claimant appealed.  

 

EAT decision

When considering the decision, the EAT found that the Tribunal needed to assess the likelihood that the impairment would last at least 12 months or recur. The Tribunal had erred in its approach by taking into account the impact of the dismissal (which was alleged to have been discriminatory) in deciding this issue. It failed to consider what the impairment would have been like in the future, had the alleged discriminatory act not taken place. The question of likelihood needed to be assessed as at the time at which the decision to dismiss was taken. The EAT held that the mere fact that the Tribunal considered the Claimant’s condition was as a result of the difficulties at work, meant that there was a high chance that the impairment would have continued or recurred if the Claimant had not been dismissed. The correct approach for the Tribunal would have been to  consider all of the evidence relating to the Claimant's impairment and assess (as at the date of the decision to dismiss) whether it was likely that the impairment would have lasted for at least 12 months, or would have recurred, had he not been dismissed. 

 

Comment

When considering the duration of impact limb of the definition of disability, and in particular the interpretation of the word ‘likely’, the case of SCA Packaging v Boyle made it clear that, when assessing recurrence, 'likely' should be interpreted as meaning ‘could well happen’, which is a lower threshold than the balance of probabilities. 

This case is a reminder that, in order to assess whether someone was disabled for the purpose of the Act, it is important to ensure that proper consideration is given to all elements of the definition of disability, otherwise the decision will not stand. The impact of a dismissal that is alleged to have been discriminatory should be ignored in determining this issue. 

 

Authored by Tim Scott and Sarah Magee.

We use cookies to give you the best user experience on our website. Please let us know if you accept our use of cookies.

Manage cookies

Your Privacy

When you visit any web site, it may store or retrieve information on your browser, mostly in the form of cookies. We mainly use this information to ensure the site works as you expect it to, and to learn how we can improve the experience in the future. The information does not usually directly identify you, but it can give you a more personalised web experience.
Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change permissions. However, blocking some types of cookies may prevent certain site functionality from working as expected

Functional cookies

(Required)

These cookies let you use the website and are required for the website to function as expected.

These cookies are required

Tracking cookies

Anonymous cookies that help us understand the performance of our website and how we can improve the website experience for our users. Some of these may be set by third parties we trust, such as Google Analytics.

They may also be used to personalise your experience on our website by remembering your preferences and settings.

Marketing cookies

These cookies are used to improve and personalise your experience with our brands. We may use these cookies to show adverts for our products, or measure the performance of our adverts.