What does “long term” mean when it comes to defining a disability?

The Employment Appeal Tribunal has held that an Employment Tribunal erred in law when determining that an employee was not disabled under the Equality Act 2010, by focusing the dismissal on their anxiety when assessing whether the effect of the anxiety was long-term.

The claimant believed that she had been subjected to disability discrimination by her ex-employer who argued that she was not disabled under the definition in the Equality Act 2010.  It defines a disability as a “mental or physical impairment which has a substantial and long-term adverse effect on the employee’s ability to carry out normal day to day activities”. The effect of an impairment will be long term if, at the time of the alleged discriminatory act, it has lasted, or is likely to last for at least 12 months.

The tribunal held that the employee suffered from anxiety and that this had a substantial adverse effect on her ability to carry out normal day to day activities. However, she did not have a significant history of poor mental health and she had only started to suffer from anxiety when she felt overwhelmed at work and experienced a loss of confidence three and a half months before the alleged discrimination. In its deliberations, the tribunal had to decide if the anxiety would last beyond the claimant’s employment, thus determining that she was disabled under the act. The tribunal concluded that her anxiety was centred on workplace issues and was therefore unlikely to last after her employment had terminated.

The Claimant appealed, arguing that the employment tribunal had been wrong to take her dismissal and events following it into account when considering whether her condition was long term.

The Appeal Tribunal upheld the appeal because the employment tribunal had failed to make an assessment on the available evidence regarding the claimant’s condition and its effects. It held that the ET had been wrong to attach material weight to the fact that her anxiety had been caused by the workplace and was unlikely to persist after termination of her employment.

This case is a useful reminder of the low threshold to be applied when considering the likelihood of the effects of an impairment lasting for at least 12 months. Even if the effect is relatively short-term, if it had been present prior to the act of discrimination, an ET is entitled to find that it amounts to a disability because it “could well” last for 12 months or more.

For guidance with cases relating to disability please contact 121 HR Solutions on 0800 9995 121.

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