In the recent case of Nissa v. Waverly Education Foundation, the Employment Appeal Tribunal (EAT) helped clarify the definition of disability under the Equality Act 2010 (EA) and, in particular, helped shed light on how "long term", which forms part of the statutory definition, should be understood.
Background
Mrs Nissa had been employed by the Waverly Education Foundation (the Foundation) as a science teacher since September 2013. From December 2015, Mrs Nissa suffered from symptoms including fatigue, muscle stiffness and sensitivity to pain, which were later diagnosed as fibromyalgia.
She resigned on 31 August 2016 and brought a claim against the Foundation for disability discrimination under the EA. She claimed that the impairments had caused her to suffer a substantial and long term adverse effect on her ability to carry out normal day-to-day activities. Whilst the Foundation did not dispute that she was suffering from these conditions, they did not agree that she had a disability under the EA and contended that her impairments could not be classified as long term.
Relevant legislation
Under the EA, the criteria for determining whether an individual is disabled are as follows:
- Does the person have a physical or mental impairment?
- Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?
- Is that effect substantial?
- Is that effect long term?
Case law has established that a tribunal ruling on disability should consider these questions separately and sequentially and, while criteria 1 to 3 are contested regularly in their own right, it is criterion 4 that raises the most questions from employers and employees. Under the EA a physical or mental impairment can be considered long term if it has lasted 12 months, is likely to last 12 months, or is likely to last for the rest of the life of the person affected.
ET and EAT decisions
In the first instance, the Employment Tribunal (ET) found in favour of the Foundation and held that Mrs Nissa was not disabled under the EA as at no point during the relevant period (her employment) could it be said that the adverse effects of her impairments were likely to be long term, given that the only information available to the Foundation was the medical diagnosis provided two weeks before her resignation.
On appeal, the EAT concluded that the ET had erred in its judgment. The EAT followed the approach of the House of Lords in SCA Packaging Ltd v. Boyle and clarified that, in considering whether something would be "likely", it is important to ask if it "could well happen". The ET should have asked if Mrs Nissa's impairment "could well" last more than 12 months, rather than ask if it was "probable" that it would. The ET had incorrectly focused on her diagnosis (which came late in the relevant period) rather than the effects of her impairments themselves.
Mrs Nissa had visited various clinicians between December 2015 and June 2016 and, although one of the GPs had referred to her condition as "fibromyalgia", the diagnosis was not applied consistently and the ET could also not find anything to suggest the clinicians expected her symptoms to be long term. When considered by the EAT, it was found that the ET had placed too much weight on the diagnosis and emphasis on a prognosis which referred to the possible amelioration in Mrs Nissa's symptoms.
The EAT highlighted that the existence of a diagnosis was evidentially relevant; however, the absence of such was not determinative.
It is also noteworthy that the Foundation sought to rely on later medical evidence in October 2016, stating that Mrs Nissa may slowly recover. The evidence was provided outside of the period of employment and the EAT was keen to point out that only evidence available at the time should be considered when considering whether a disability would be long term. The Foundation could not profit from the benefit of hindsight.
"The case has been remitted to a different tribunal for reconsideration."
Comment
The EAT's decision in this case is a clear reminder that, when determining whether an individual falls under the definition of disabled under the EA, a broad approach should be adopted. The diagnosis of a specific condition is relevant, however it should not be considered determinative of whether impairments resulting from that condition are long term.
Employers should ensure that, if an individual is diagnosed, clarity is sought regarding the period of impairment and future prognosis. Where an impairment is likely to last more than 12 months, employers should be aware of the low threshold that an employee needs to meet, and that the test is whether it "could well happen" that the impairment lasts more than 12 months.
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