The Employment Appeal Tribunal (EAT) has held in Parnaby v Leicester City Council that, when considering whether an impairment is “likely” to last for at least 12 months for the purposes of a disability discrimination claim under the Equality Act 2010, tribunals must consider whether “it could well happen” that the effect could last that long.
Mr Parnaby was dismissed in July 2017 following two periods of sickness absence from mid-April to the end of May 2016 and from January to July 2017. According to his GP, he suffered from a depressive disorder for which he had been prescribed anti-depressant medication on an intermittent basis from May 2016 and continuously from June 2017.
He claimed that his dismissal amounted to an act of disability discrimination and/or was unfair. In addition, he argued that he had been discriminated against by his employer during his second period of sick leave by virtue of being referred to Occupational Health in February/March 2017; by being subjected to his employer’s absence management procedure; and by the failure to make reasonable adjustments at the final capability meeting.
The question for the tribunal was whether he was a disabled person for the purposes of the Equality Act 2010.
Schedule 1, paragraph 2 of the Act states that the effect of an impairment is long-term if a) it has lasted for at least 12 months; b) it is likely to last for at least 12 months; or c) it is likely to last for the rest of the life of the person affected.
The tribunal accepted that Mr Parnaby had suffered an impairment arising from work-related stress and that this had a substantial adverse effect on his ability to carry out normal day-to-day activities. The only issue, therefore, was whether the impairment was long-term.
It held that it was not as the stress Mr Parnaby had suffered from April 2016 was resolved by that September, meaning that it had not lasted 12 months and was not likely to recur. The second period of stress starting in January 2017 was therefore a distinct period during which time the difficulties he experienced at work did not occur outside of work. Indeed, his condition improved in July 2017 after he was dismissed.
Mr Parnaby appealed, arguing that the tribunal was wrong to have focused on the question of whether the second phase of illness had itself lasted 12 months, rather than asking whether, at the date of dismissal, the effects of the impairment were likely to last at least 12 months or to recur. He also argued that the tribunal was wrong to take into account the fact that, once the cause of his stress was removed (his job), his impairment was not likely to last at least 12 months or to recur.
Allowing the appeal, the EAT held that the tribunal’s decision that Mr Parnaby’s impairment was not likely to last 12 months or to recur was based on the fact that his dismissal had removed the cause of his stress. However, his dismissal was, in and of itself, an alleged act of discrimination.
Rather than finding that the likely duration of his impairment was limited by dismissal, the tribunal should have considered whether, prior to the decision to dismiss, it could well happen that the effect would last at least 12 months or that it might recur. As the tribunal had not answered that question, the EAT remitted it to a differently constituted tribunal for re-hearing.
This case highlights the pitfalls of applying the gift of hindsight to a set of known facts. The question of long-term effect is determined by considering whether “it could well happen” as per paragraph C3 of the Guidance on Matters to be taken into Account in Determining Questions Relating to the Definition of Disability (2011).