The importance of ‘long-term’ in disability cases

In Parnarby v Leicester City Council, the Employment Appeal Tribunal (EAT) were tasked with deciding whether an employer should have factored in the likelihood of an impairment reoccurring again, when assessing whether it was sufficiently ‘long-term’ to qualify as a disability.

The employee in this case was off work on long-term sickness absence on two separate occasions. He claimed that he was suffering from depression brought on from work related stress. At the end of his second period of absence, which lasted for seven months, the employee was dismissed for capability reasons. By the time of his dismissal, GP records outlined that the employee suffered from a ‘depressive disorder’ and that he had been taking prescribed antidepressant medication on an intermittent basis for over a year.

He raised claims with an employment tribunal for unfair dismissal and disability discrimination, with the employee outlining that his dismissal was the final act in a series of incidents. Although it was accepted that the employee’s ‘depressive disorder’ could be considered a disability under the Equality Act 2010, a question was raised as to whether it met the criteria of ‘long-term’. After all, for a condition to fully qualify as a disability it must last, or must be likely to last, for at least 12 months. It should be noted that, following his dismissal, the employee did not regularly contact his GP regarding his mental health issues.

At a preliminary hearing, the ET accepted that the employee did have an impairment that was the result of work-related stress, and that this impairment met the criteria under the Equality Act 2010 in having a substantial adverse effect on his ability to carry out normal day-to-day activities. Despite this, the ET held that the impairment could not be classed as ‘long term’. His two periods of absence had not lasted longer than 12 months and, in particular, his workplace difficulties did not seem to affect him when he was not at work. If anything, his condition appeared to have improved following his dismissal, especially as there had been limited communication between the employee and his GP.

The employee appealed against this decision to the Employment Appeal Tribunal (EAT), who upheld his appeal and remitted the case to a new tribunal for further review. The EAT outlined that the question of whether the employee’s impairment was likely to last for 12 months or more, or likely to recur, should have been considered at the time of the discriminatory acts in question.

The EAT was of the opinion that the ET had erred by assuming that the future impacts of his impairment would be time limited by his dismissal just because it had served to remove the cause of his stress. The EAT held that when considering if an impairment is likely to last at least 12 months, or will recur, the key question is whether it ‘could well happen’. The tribunal should not, in their view, have assumed that removing the cause of the stress by dismissing the employee would remove the impairment.

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