A person has a disability if they have a physical or mental impairment that has a “substantial and adverse long-term effect” on their ability to carry out normal day-to-day activities. In Seccombe v Reed In Partnership Ltd, the Employment Appeal Tribunal (EAT) held that the requirement for something to be long term relates to the effect of the impairment and not just the impairment itself.
In April 2007, Mr Seccombe suffered an injury to his back which required spinal decompression surgery. His GP recorded in October 2008 that he was depressed and required medication. In September 2015, he was diagnosed with anxiety disorder and stress and was signed off work for just over six weeks.
Prior to starting work with Reed at the end of November 2016, Mr Seccombe stated in an equal opportunities questionnaire that he had no health-related issues or impairments that might require reasonable adjustments. After a traumatic incident in December 2017, he went on sick leave for three weeks, returning in mid-February 2018. During that time he told his manager and another person at work that he was on the edge of a breakdown and was having panic attacks.
He was asked to attend a performance review meeting on 28 March 2018 at which he was dismissed. He lodged tribunal proceedings for disability discrimination and failure to make reasonable adjustments.
The tribunal accepted that Mr Seccombe had suffered anxiety and depression which may have had a temporary, substantial adverse effect on his ability to carry out day-to-day activities.
However, it rejected his claim that he was a disabled person as there was no medical evidence of any difficulties arising from mental impairment between 2008 and 2015, nor for the subsequent two-year period until Christmas 2017. There was, therefore, no evidence that his condition had had a substantial adverse effect on him over the years, nor any evidence of an impairment which was “likely to recur”. In addition, there was no formal diagnosis of his condition; the two previous episodes of mental impairment pre-dated his employment with Reed; and he had not raised any concerns with the company about a possible mental health impairment.
If it was wrong on this point, however, the tribunal held that the company did not have actual or constructive knowledge of his disability. Although they were aware of the incident in 2017, they were entitled to conclude that his distress was because of an appalling but one-off incident, after which his GP had certified that he was fit to return to work.
The EAT agreed with the tribunal that Mr Seccombe was not disabled. Although the company was aware after the incident in 2017 that he was suffering from anxiety they did not know that the impairment was long term.
It also summarised a number of points relating to the law on disability:
- the requirement for something to be long term relates to the effect of the impairment and not just the impairment itself
- it is not enough that someone has an impairment that is long term; instead, it must have a substantial adverse effect on day-to-day activities that is long term
- it is important what a person says (or does not say) about their impairment, particularly if there is a period for which there is no medical evidence
- the definition of disability must be met at the time of the alleged discrimination
- it is for the employer to show that it was unreasonable for them to know that a person suffered an impediment to their physical or mental health, or that the impairment had a substantial and long-term effect
- the question of reasonableness is one of “fact and evaluation”.
This case provides a helpful reminder of the legal test as to whether a condition meets the legal definition of disability.