Disability – definition – ‘substantial’ – ‘long-term’
Until she resigned on 31 August 2016, the Claimant was employed by the Respondent as a Science Teacher. In her subsequent ET claim, she contended she had suffered disability discrimination; it was the Claimant’s case that, since December 2015, she had suffered from a physical impairment, ultimately diagnosed as fibromyalgia, together with mental distress. She claimed these impairments caused her to suffer a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities. Considering whether the Claimant was disabled for the purposes of the Equality Act 2010, the ET first asked whether, on the evidence available within the material period (16 December 2015 to 31 August 2016) it could be said that the effects of the Claimant’s impairment/s were likely to last more than 12 months. Noting that none of the Claimant’s advisers had considered her condition long-term, that a diagnosis of ‘fibromyalgia’ was not made until 12 August 2016 and was subject to the caveat that the Claimant’s symptoms might slowly improve as she was no longer in the Respondent’s employment, the ET concluded it could not be said to have been likely that the effects would be long-term. In the alternative, the ET went on to consider whether the Claimant had established that her conditions had a substantial effect on her ability to carry out normal day-to-day activities. Accepting they had some adverse effect, the ET held that her evidence had failed to demonstrate the precise nature of the effect and it noted that none of the clinicians or therapists consulted by the Claimant during the material period made any reference to any specific effects. Even if the effects of the Claimant’s impairments had been long-term, the ET would, in the alternative, have found she had failed to establish that they had given rise to the relevant substantial effect.
The Claimant appealed against both findings.
Held: allowing the appeal
In determining whether the effect of the Claimant’s impairments was ‘long-term’, the ET had focused on the question of diagnosis rather than the effects of the impairments and had adopted a narrow approach, rather than looking at the reality of risk – whether it could well happen – on a broad view of the evidence available. More than that, although stating it had avoided viewing the issues with the benefit of hindsight, that was precisely what the ET did when putting emphasis on Dr Khan’s prognosis post-dating the material period.
As for whether the effect was ‘substantial’, the ET’s reasoning did not demonstrate that it looked to the deduced effects, assessing the impact of the Claimant’s conditions absent mitigation through medication. There was equally nothing to show that the ET had paid any regard to the Claimant’s doctor’s report, which had detailed the effects of the impairments on the Claimant’s ability to carry out normal day-to-day activities and was plainly relevant to this issue. Taking into account the wider medical evidence (including evidence of the medication prescribed to the Claimant, which would then need to be discounted), the Claimant’s periods of sick leave (apparently demonstrating an inability to carry out the activities for her work) and the quite detailed explanation provided in her doctor’s report of 22 June 2016, and reading all that alongside the Claimant’s own statement, the ET’s Decision on ‘substantial adverse effect’ could not stand; it failed to take into account relevant evidence and that rendered its conclusion unsafe.
Case remitted to a different ET for re-hearing.
Citations:
[2018] UKEAT 0135 – 18 – 1911
Links:
Jurisdiction:
England and Wales
Employment, Discrimination
Updated: 27 April 2022; Ref: scu.633791