Likely to be long term?

In order to succeed in a disability discrimination one of the core requirements is that the impairment has, or is likely to, be long term. As enacted the Equality Act defines long term as being an impairment that has or is likely to last twelve months or more. As I have highlighted previously, the 12 month requirement is specific to UK law and – in my view – there is some reason to think that (pre-Brexit) this definition of long term is inconsistent with Council Directive 2000/78/EC and could be challenged.

Nonetheless the basic position is that an impairment is long term if and only if it has lasted or is likely to last 12 months or more and, for all the harsh consequences that figure can cause to some employees it does have least give a measure of certainty. In practice this means that one of the first questions a union representative will explore when there is any health issue is how long this has been present because, by doing so, the rep can go a long way towards establishing whether disability discrimination issues could be relevant; this is normally a relatively straightforward process. But when the condition has not been present for 12 months the task is more complicated.

It is a mistake, as sometimes happens, to assume that there can be no disability issues in play if the impairment is a relatively recent occurrence. The recent consideration of what it means for an impairment to be likely to be long term by the Employment Appeal Tribunal in Parnaby v Leicester City Council [2019]  is helpful in this regard. The relevant facts of the case are that Mr Parnaby had a depressive disorder that was intermittent and was found to be be work related. The Employment Tribunal found that, with the exception of the impairment being ‘long term’ all the requirements of disability were met. However, they considered that at the time of his dismissal in July 2017 he had not been impaired for 12 months and, because the cause of the decision was work, the dismissal served to remove the cause of the impairment and therefore the depressive disorder would no longer to be likely to last for twelve months or more. The ET took support by ‘looking back’ at how his condition improved after the dismissal.

As an aside, had this rationale been followed by the EAT it would have created a perverse situation in which employers would have had grounds whenever faced with any employee with work related stress that risked becoming long term to dismiss them prematurely so as to to defeat any potential disability discrimination complaint which would run counter to the statutory intent of the Equality Act. Thankfully, the EAT declined to follow the judgement (albeit gave the ET some leeway to reconsider this in the substantive hearing).

The EAT found the tribunal fell into error in factoring in the effect of a dismissal (which was itself challenged and being discriminatory) and determining this meant the condition was not long term. In particular, the EAT criticised the ‘looking back’ approach the Tribunal adopted in considering how the dismissal affected Mr Parnaby’s health and pointed out the assessment must be forward looking from the point in time and with the evidence available when the act complained about occurred (applying the Court of Appeal’s decision in Richmond Adult Community College v McDougall).

Equally critical is that when a tribunal is asked to whether it is ‘likely’ that the impairment would last 12 months or more or likely to recur the tribunal is not being asked to assess whether the impairment ‘probably will’ or ‘probably won’t’ last for twelve months. Applying the decision of the House of Lords in SCA Packaging Limited v Boyle [2009] which found that for disability purposes ‘likely’ means ‘could well happen’ the EAT found that there was no consideration of this issue.

In terms of practical lessons the significance of this case is that the fact that a condition has not affected an employee does not mean that the employee will not be disabled. If there is evidence that the impairment will continue to affect the employee over future months (or could well do so) then  the employee may well still meet the legal definition of disability under the Equality Act 2010 and if there is a good basis for such a view this should be explicitly put to the employer, forcing them to take a position on the question.