Nissa v. Waverley Education Foundation Ltd and Ors [EAT 0135/18/] focuses on two aspects of the definition of disability under s6 Equality Act 2010 (“EQA”). The case emphasises that one needs to always consider questions about "substantial" and "long-term" effects in very broad terms.
Background
Until her resignation on 31 August 2016 N was employed as a science teacher.
N alleged that since 2015 she had suffered from physical impairments those being fibromyalgia, together with mental distress. These impairments caused her to suffer a substantial and long-term adverse effect on her ability to carry out normal day to day activities. As a result, N claimed she was disabled by reference to s6 EQA.
N brought disability discrimination proceedings. The Tribunal hearing in May 2017 was limited to the question of whether N was disabled by reference to s6 EQA.
The Law
A disability is defined under s6 EQA as:
(1) A person (P) has a disability if:
(a) P has a mental or physical 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.
Furthermore, under Schedule 1 of the EQA “Long-term effects” is defined as:
The effect of an impairment is long-term if:
(a) it has lasted for at least 12 months, or
(b) it is likely to last for at least 12 months
The Tribunal Hearing
Waverley accepted that N had the physical impairments complained of, however it disputed whether her fibromyalgia was substantial or long-term.
The Tribunal had to consider whether in the relevant period (i.e. 16 December 2015 to 31 August 2016 (so less than 12 months)) it could be said that N’s impairments were likely to last more than 12 months.
The Tribunal held that N’s condition was not long-term. In doing so it relied upon the fact that none of N’s adviser’s had considered her condition as being long-term; the diagnosis of fibromyalgia was not made until 12 August 2016; and was subject to the caveat that N’s symptoms might slowly improve as she was no longer employed by Waverley.
Separately the Tribunal considered whether N’s medical conditions had a substantial effect on her ability to carry out normal day-to-day activities. The Tribunal held that the effects were not substantial.
As a result, N’s claim was dismissed and she appealed to the EAT.
Employment Appeal Tribunal ("EAT")
N’s appeal was upheld by the EAT.
The EAT felt the Tribunal had focussed 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 – namely whether it could well happen - on a broad view on the evidence available. Furthermore, the Tribunal had approached the question with the benefit of hindsight putting emphasis on a medical professional’s prognosis post-dating the relevant period.
In SCA Packaging v. Boyle [2009] ICR 1056 HL Baroness Hale clarified that in considering whether something was likely, it must ask whether "it could well happen". Furthermore, the Guidance on Matters to be taken into Account in Determining Questions relating to the Definition of Disability (“Guidance”) states at para C3 that the word “ ‘likely’ should be interpreted as meaning that "it could well happen” rather than, it is more probable than not that it will happen.
In determining the question of whether something is “likely” a broad view has to be taken of the symptoms and consequences of the disability as they appeared during the relevant time [see Cruickshank v VAW Motorcast Ltd [2002] ICR 729 EAT.]
Turning to the question of whether something has a substantial adverse effect, the EAT acknowledged that case law sets a relatively low threshold. The Guidance at para B describes a substantial effect as being one which is “more than minor or trivial”, and ought to be understood as applying where a limitation goes “beyond the normal differences in ability which may exist among people”.
Comment
This case is indicative of just how much litigation continues to be generated out of a seemingly innocuous statutory definition of “disability”.
Medical evidence is always going to play a key part as to whether or not someone is disabled in these type of situations. Therefore, in cases where the duration of the physical or mental impairment is less than 12 months, it makes a lot of sense to always ask a medical professional (assuming the employer is obtaining its own evidence) to address prognosis based upon the SCA Packaging guidance. |
