To bring a claim for Disability Discrimination under the Equality Act 2010, a Claimant has to satisfy the Tribunal that they are suffering from a physical or mental impairment that has a substantial adverse impact on normal day to day activities and is “a long term” meaning lasted or expected to last more than 12 months in total. In a recent Employment Appeal Tribunal (EAT) case Parnaby v Leicester City Council the EAT held that the Tribunal had erred in Law in not considering all limbs of that test properly.

In the case, the Claimant was off work with depression caused by work related stress. The Claimant was able to show that he had a mental impairment and that it had a substantial adverse impact on his normal day to day activities. At the time however, of his dismissal (which was the claimed discrimination) the impairment has not lasted for 12 months. The Tribunal therefore ruled that the Claimant was not disabled, because the impairment was not long term. The Claimant appealed to the EAT.

The EAT ruled that the Tribunal had fallen into error by assuming that the likely future duration of the impairment (at the time of dismissal) would be time limited by the Claimant’s dismissal, which would then remove the source of the impairment (i.e. the stress of work that caused the depression). That was the wrong analysis. The Tribunal should instead have considered whether the impairment was likely to last 12 months or whether it might reoccur in the future. The EAT said the Tribunal had made an assumption that removing the stress would remove the impairment. However, following earlier Case Law, the proper test to assess whether or not an impairment was likely to reoccur in the future was a predictive one. Tribunals have to consider whether it “could well happen” in the future. “Could well happen” it means “more probable than not”. The Tribunal had not considered this in reaching it’s decision and therefore the EAT overturned the Judgment and remitted the case back to the Tribunal to properly apply the tests.

The case is a reminder of the increasingly broad protection for employees under the Equality Act.

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