The Employment Appeal Tribunal (EAT) has held in Nissa v Waverly Education Foundation Ltd and anor that, when trying to decide whether an impairment is long term or not, tribunals should look at the “reality of risk” and ask whether “it could well happen” that the impairment could last at least 12 months, based on a broad view of the evidence available.
Ms Nissa was employed as a science teacher by the foundation from September 2015. In December that year she started suffering from a physical impairment as well as “mental distress”. Despite being referred to various clinicians, it was not until August 2016 that she was diagnosed as suffering from fibromyalgia. She resigned the same month. In October 2016 when her consultant wrote to her GP with the diagnosis, he suggested her symptoms might improve now that she was no longer working for the foundation.
Ms Nissa claimed disability discrimination. Although the foundation accepted that she was suffering from physical and mental impairments, it disputed that they had had an adverse effect on her ability to carry out normal day-to-day activities in relation to the mental distress. As far as the fibromyalgia was concerned, it disputed firstly that the effects were “substantial”; and secondly that the impairments (whether substantial or not) had a long-term effect.
Section 6 of the Equality Act 2010 states that “a person (P) has a disability if:
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities”.
Noting that none of Ms Nissa’s advisers had considered her condition long-term, that a diagnosis of “fibromyalgia” was not made until August 2016 and was subject to the caveat that her symptoms might slowly improve, the tribunal concluded it could not be said to have been likely that the effects would be long-term.
It also considered whether Ms Nissa had established that her condition had a substantial effect on her ability to carry out normal day-to-day activities. Whilst it accepted that it had some adverse effect, it was not convinced by her evidence as to the precise nature of the effect. In addition, it noted that none of the clinicians or therapists that she consulted made any reference to any specific effects. As such, even if they had been long-term, the tribunal would have found that they were not substantial.
Ms Nissa appealed, arguing that the tribunal was wrong to find that the effects were neither substantial nor long-term.
Allowing the appeal, the EAT held firstly that the tribunal was wrong to focus on the question of diagnosis rather than the effects of the impairments. In order to decide whether an impairment is “likely” to be long-term, it should instead have looked at the “reality of risk” and asked whether “it could well happen” that the impairment could last at least 12 months, based on a broad view of the evidence available.
As for whether the effect was “substantial”, the tribunal had failed to take into account the medical evidence; Ms Nissa’s witness statement in which she explained how difficult and painful it was to carry out different daily chores; and the fact that she had taken periods of sick leave indicating that she was unable to carry out certain activities required for her work.
The case was remitted to a different tribunal for reconsideration.