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Case law: Tribunal gives guidance on definition of 'disability' for discrimination purposes

Employers will welcome guidance from the court on how to determine whether a worker is 'disabled' within the legal definition.

April 2019

This update was published in Legal Alert - April 2019

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

A teacher resigned with effect from 31 August 2016 and alleged disability discrimination, claiming she suffered from fibromyalgia and mental distress. She said these made her daily chores ‘extremely difficult, painful and exhausting’. Her symptoms had started in December 2015 but the diagnosis of fibromyalgia was not made until 12 August 2016. The diagnosis included an opinion that her symptoms might slowly get better as she was no longer working.

Someone is disabled for discrimination purposes if they have a physical or mental impairment which has (or is likely to have) a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. 'Long-term' usually means 12 months, and an impairment is 'likely' to have the required effect if 'it could well happen'.

The teacher's employer claimed that her impairments did not have a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities.

The Employment Tribunal (ET) found that it was not likely that the employee's impairment would be long-term and, even if it was, it would have found that the impairment was not substantial enough.

However, the Employment Appeal Tribunal (EAT) ruled that the ET had been wrong to focus on the employee's diagnosis. It should have focused on the impairment itself and the risk, on the basis of a broader view of the available evidence and without relying on hindsight, of whether it 'could well happen' that the impairment would last for more than 12 months.

It also said that the ET had not taken into account plainly relevant evidence when deciding that the impairment did not have a substantial effect. The case was sent back to a new ET to reconsider the teacher's claim.

Operative date

  • Now

Recommendation

  • Employers faced with a disability discrimination claim should carefully consider whether the worker's condition is within the legal definition of a disability and, as this can be a complex question, consider taking specialist advice.

Case ref: Nissa v Waverly Education Foundation Ltd and another UKEAT/0135/18/DA

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