Disability discrimination: EAT clarifies definition of "long-term" disability

In Nissa v. Waverly Education Foundation, the Employment Appeal Tribunal (EAT) clarified the definition of “disability” under the Equality Act 2010.

Mrs Nissa was employed by Waverly Education Foundation as a science teacher with continuous service from 1 September 2013. From December 2015, Mrs Nissa argued that she had suffered impairments ultimately diagnosed as stemming from fibromyalgia and mental distress. Symptoms included fatigue, muscle stiffness and sensitivity to pain.

She resigned, effective from 31 August 2016, and brought a claim for disability discrimination under the Equality Act, claiming the fibromyalgia and mental distress caused a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities. Although her employer did not dispute that she was suffering from these conditions, they did not accept that she was disabled under the Equality Act.  In particular they argued that such effects as Mrs Nissa suffered were not long term.

ET decision

The Employment Tribunal (ET) found in favour of Mrs Nissa’s employer and held that Mrs Nissa was not a disabled person under the Equality Act as her impairments were not long term. The Tribunal noted that her medical diagnosis of fibromyalgia was not made until 12 August 2016 and that her symptoms may slowly improve. On the facts, the ET decided that at no point during the relevant period could it be said that the adverse effects were likely to be long term.

Although Mrs Nissa’s condition had some adverse effect, the ET also held that she failed to establish that the condition had given rise to any substantial effect.

EAT decision

The EAT allowed the appeal and found in favour of Mrs Nissa. The EAT followed the approach of the House of Lords in SCA Packaging Ltd v. Boyle and clarified that in considering whether something would be likely, it is important to ask if it “could well happen“.  That is tribunals should ask if the impairment “could well” last more than 12 months, rather than ask if it is “probable“.  The ET had incorrectly focused on her diagnosis (which came late in the relevant period) rather than the effects of her impairments.

The EAT also held that the ET’s decision on the substantial adverse effect was also unfounded. It did not take into account relevant evidence, including Ms Nissa’s evidence of her difficulty in carrying out her daily chores.   The case was therefore remitted to a different tribunal for reconsideration.

This case emphasises that, when concluding whether an individual is disabled under the Equality Act, a broad approach should be adopted. While the diagnosis of a specific condition will be relevant, it is not determinative of whether the impairments resulting from that condition are long term or substantial.  Where there is uncertainty, employers should generally take a proactive approach and refer their employees for a medical assessment as soon as they are made aware of the apparent condition. 

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