Labour & European Law Review Weekly Issue 306 14 February 2013
Under the disability provisions of the Equality Act 2010, claimants have to show that their impairment has a substantial and long-term adverse effect on their ability to carry out day-to-day activities. In Sussex Partnership NHS Foundation Trust v Norris, the Employment Appeal Tribunal (EAT) said that although the condition itself does not have to directly cause the adverse effect, the evidence must show a causal link between them.
In 1997, Ms Norris, who had worked for the Trust since April 1995, was diagnosed with Selective IgA, a defect of the immune system. As this meant she was more susceptible to diarrhoea and upper respiratory infections, she had to take preventative antibiotics.
In July 2010 she applied for and was provisionally offered the job of Team Administrative Co-ordinator with the Trust, subject to satisfactory references. However, it then withdrew the offer because one of her referees referred to her disability and she brought a claim of disability discrimination.
The Trust agreed that she had a physical impairment within the meaning of section 6(1)of the Equality Act but denied that she was a disabled person within the meaning of the Act.
Sections 6(1) of the Equality Act 2010 states that a person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
Section 6(2)(2) states that the impairment will still be treated as having a substantial adverse effect on the person’s ability to carry out normal day-to-day activities if it clears up, but is likely to recur.
Section 6(5) states that an impairment will still be deemed to have a long-term adverse effect if the person were to stop taking the “measures” that they need to “treat or correct it”.
The lay majority (the judge disagreed) of the tribunal held that, if Ms Norris failed to take her medication, she would be prone to infection which would have a “severe impairment” on her ability to work and would have to take sick leave.
It concluded, therefore, that Selective IgA had a substantial adverse effect on her ability to carry out day-to-day activities. The tribunal also found that, as the infections were likely to recur, the effect was long-term. The Trust appealed both these findings.
The EAT overturned the tribunal’s decision, saying that there must be evidence to support a causal link between the impairment and the substantial and long-term adverse effect on the person’s ability to carry out day-to-day activities.
Although the medical evidence supported a link between Selective IgA and infections which might affect Ms Norris’ ability to work, the medical expert had not answered the question as to whether more frequent infections would result in a substantial adverse effect on her ability to carry out normal day-to-day activities. The EAT found the evidence as a whole (including Ms Norris’ account) did not support the tribunal’s conclusion that increased frequency of infections would result in a substantial adverse effect on her ability to carry out day-to-day activities.
The EAT also found that there was insufficient evidence to support the conclusion of the majority of the tribunal that the adverse effects of her impairment were likely to recur as there was only one three-month period in 2007 in a life span of 40 years when it had the required effect on her ability to carry out day-to-day activities.
It remitted the issue of whether Ms Norris was disabled for the purposes of the Act to a fresh tribunal.
Whilst at first blush this is a disappointing result for disabled employees, all is not lost. The decision shows how important it is to support the medical evidence with detailed factual background of the actual effect and recurrence. As the claim will be reheard Ms Norris can put her case again, following the EAT guidance. It is also worth noting that Ms Norris was not represented, highlighting the importance of effective trade union representation in these difficult cases.