For disability to be a protected characteristic under the Equality Act 2010 it must have a substantial and long-term effect. The Equality Act provides that ‘long-term’ is essentially 12 months, so the disability must have lasted or be likely to last for at least 12 months. ‘Likely’ is equated to ‘could well happen’.
In Parnaby v Leicester City Council, Mr Parnaby was dismissed due to long-term absence attributed to work-related stress. Although there were two periods of absence, only the second, between January and July 2017, was relevant to this case. The employment tribunal accepted that Mr Parnaby’s condition could be a disability: but the issue to be decided was whether that condition was likely to last for 12 months, or to recur. The stress was work-related and, when he stopped work, having been dismissed, Mr Parnaby’s symptoms ceased: the tribunal concluded that the condition was therefore not long-term and that he did not meet the definition of disability. Perhaps unsurprisingly, Mr Parnaby appealed to the Employment Appeal Tribunal (EAT).
The EAT overturned the tribunal decision saying that the tribunal had erred in the way it considered the question – it had in effect worked backwards and, having seen that Mr Parnaby recovered after his dismissal, had taken that into account in concluding that the disability was not long-term. What it should have done, according to the EAT, was to determine whether the disability was long-term at the date of the discrimination complained of. If the act complained of was dismissal, the tribunal should consider whether, at the date of the dismissal, the disability was likely to last for 12 months. Also, it should not factor into that consideration whether the disability would cease if the employer were dismissed for ill-health – if it could, we would be in a very odd position where, in some cases of workplace disability, an employer would effectively be encouraged to dismiss as that may make the disability last for less than 12 months. It seems, however, that if the dismissal is unrelated to ill-health (eg redundancy), that argument may still be open to employers: for example, if an employee is ill and the employer knows that the area in which they work is closing down when it dismisses, a tribunal assessing whether the disability would last for 12 months as at the date of dismissal could take into account the fact that the symptoms may have ceased by virtue of an inevitable redundancy in the near future.
The key point is that, in determining whether the impairment is long-term, the tribunal must look forward from the date of the discriminatory act as to whether the adverse effect could well last for at least 12 months, or recur.
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