When deciding if someone has a disability which satisfies the statutory test in the Equality Act 2010, judges have to consider if it has either lasted for or is likely to last for at least 12 months. In Martin v University of Exeter, the Employment Appeal Tribunal (EAT) confirmed that the correct test as to whether something is “likely to last” for at least 12 months should be interpreted as something which could “could well happen”.
Mr Martin commenced long-term sick leave in July 2015. His GP notes dated 4 June 2015 recorded that he was suffering from a stress-related condition and he was subsequently diagnosed in September 2015 as having Post Traumatic Stress Disorder (PTSD).
Prior to that diagnosis Mr Martin saw an occupational health (OH) advisor in August 2015 who said he had suffered from the “debility” for two months. This corroborated the notes recorded by his GP in June. The OH advisor concluded that he was not disabled within the statutory definition at that point. A second OH report dated 5 May 2016 recorded that he was now disabled within the statutory definition.
Mr Martin brought claims of disability discrimination and failure to make reasonable adjustments. However, the tribunal first had to decide when he became disabled.
Section 6(1) of the Equality Act (EqA) states that a person is disabled if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Schedule 1 Part 1 of the EqA states that the effect of an impairment is long term if it has lasted at least 12 months, or is likely to last at least 12 months.
The judge held that, on the basis of the GP’s notes and the OH reports, Mr Martin’s “debility” had not been present prior to June 2015 and could not “necessarily have been predicted” either in June 2015 when his anxiety-related impairment was first recorded nor in September 2015 when PTSD was first suspected.
The judge went on, “It is obviously difficult to be exact in a claim of this nature, but bearing in mind all of the above matters I conclude that the impairment was having a substantial adverse effect on the claimant's day-to-day activities by April 2016, and although it had not lasted 12 months by that time, nonetheless it is reasonable to conclude (because it had already lasted for at least nine months) that it was likely to last 12 months.” He therefore concluded that Mr Martin was a disabled person for the purposes of the EqA with effect from April 2016.
Mr Martin appealed on the basis that the tribunal had failed to apply the correct interpretation of “likely” by requiring Mr Martin to show whether his disability was likely to last for 12 months was something that had to “necessarily” have been predicted rather than being something which “could well happen” as set out in the test laid down in SCA Packaging Ltd v Boyle.
Dismissing the appeal, the EAT held that the judge had used the word “necessarily” in the context of the predictive nature of the exercise he was undertaking. In other words, he was balancing the view taken by the OH advisor in May 2016 with the evidence available in June and then September 2015 and indicating that it could not be said whether or not someone might have formed a view earlier in time as to the likely duration of the impairment.
The judge had therefore applied the correct test as set out in SCA Packaging Ltd.
Although the judgment confirms the existing test, the EAT was critical of the fact that no medical expert report had been obtained which would have suggested an appropriate date when the test might have been met. As a general rule it is beneficial to obtain a medical expert report where the disability is a mental impairment.