Clarification over the ‘long term’ element for the purposes of the definition of disability

The definition of disability for the purposes of disability discrimination is found at s.6 Equality Act 2010. In order to satisfy the definition of disability for this purpose, it is necessary for a person to have a physical or mental impairment and that impairment has a substantial long-term adverse effect on their ability to carry out normal day-to-day activities.

The effect of the impairment is long term if;

1. It has lasted for at least 12 months, or
2. It is likely to last for at least 12 months.

The case of Nissa v Waverly Education Foundation 2019 looked in to the definition of ‘long term’ as well as the definition of ‘substantial’.

This article will solely focus on the clarification of the meaning of ‘long term’.

The Claimant was employed by the Respondent as a Science Teacher until she resigned on 31 August 2016. She contended that 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.

As the Claimant’s impairments had not lasted for a period of at least 12 months, the Respondent asked the Employment Tribunal (‘ET’) to determine if the Claimant was likely to be disabled for the purpose of the Equality Act 2010. It was alleged that the Claimant’s symptoms might slowly improve as she was no longer in the Respondent’s employment and therefore the ET concluded that it could not be said to have been likely that the effects would be long term.

The Claimant appealed.

The Employment Appeal Tribunal (‘EAT’) held that, in determining whether the effect of the Claimant’s impairments was long term, the ET 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 the risk – whether it could well happen.

The ET’s original approach led it to misapply the word “likely” by adopting a stricter test. Instead, if the ET were to have asked if it could well happen, the range of evidence put before it could have satisfied that it may do so.

The EAT allowed the appeal on the basis that the interpretation of likely was too strictly applied.

If faced with a claim of this type, it is crucial for employers to look at all of the evidence they have before them of both diagnosis and the effects the disability is having or is likely to have on the employee. It is important to view the likelihood of a disability with wider interpretation. Employers should be cautious of the fact a claim for discrimination has no limit and is usually significant due to a claimant being able to claim an award for ‘injury to feelings’.