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Disability Discrimination – the Likelihood of “Long Term” Impairment

A recent decision by the Employment Appeal Tribunal (EAT) in Parnaby v Leicester City Council has confirmed that any employment tribunal dealing with disability discrimination must consider all four arms of Schedule 1, paragraph 2 of the Equality Act 2010 in order to be upheld.

Schedule 1, section 2 of the Equality Act 2010 states that:

  • the effect of an impairment is long-term if-

a. it has lasted for at least 12 months

b. it is likely to last for at least 12 months

c. it is likely to last for the rest of the life of the person affected

  • If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.

In the Parnaby case, the Claimant suffered work-related stress on a number of occasions. On the first occasion from April until approximately August/September 2016, and the second January to July 2017. The Claimant was dismissed from his role on 18 July 2019.

When considering the Claimant’s position, the tribunal accepted that the Claimant had suffered an impairment that had a substantial adverse effect on day to day activities, but deemed that the disability was not “long term”, therefore he could not be regarded as a disabled person for the purposes of the Equality Act 2010.

The Claimant appealed the decision of the tribunal.

The EAT determined that the tribunal had made an error in its approach to the definition of “long term”. The tribunal found that the Claimant’s impairment was not likely to last at least 12 months or recur as he had been dismissed from his employment, therefore removing the cause for impairment. However, what the tribunal should have considered was the likelihood of the effect lasting at least 12 months or recurring, at the time at which the relevant decisions were being taken. In the Parnaby case, that time was prior to the implementation of the decision to dismiss.

It followed that the tribunal’s decision could not stand and the EAT ordered that the question of whether the Claimant’s impairment was “long-term” be remitted to a differently constituted tribunal for re-hearing.

This bulletin is for general guidance only and should not be used for any other purpose. It does not constitute, and should not be relied upon as legal advice.

JMW Solicitors is a Limited Liability Partnership.