Background
The Claimant suffered from depression which was caused by work related stress. The Claimant was able to show that his impairment had a substantial adverse effect on his ability to carry out normal day-to-day activities; however, the Tribunal held that the Claimant was not a disabled person for the purposes of the Equality Act 2010 (“the Act”) on the basis that the impairment was held not to be long-term. The Tribunal took the view that when the Claimant was dismissed, this had removed the cause of the impairment, which was the work-related stress. At the time of the dismissal, the impairment had not lasted 12 months. The Claimant appealed.
EAT decision
When considering the decision, the EAT found that the Tribunal needed to assess the likelihood that the impairment would last at least 12 months or recur. The Tribunal had erred in its approach by taking into account the impact of the dismissal (which was alleged to have been discriminatory) in deciding this issue. It failed to consider what the impairment would have been like in the future, had the alleged discriminatory act not taken place. The question of likelihood needed to be assessed as at the time at which the decision to dismiss was taken. The EAT held that the mere fact that the Tribunal considered the Claimant’s condition was as a result of the difficulties at work, meant that there was a high chance that the impairment would have continued or recurred if the Claimant had not been dismissed. The correct approach for the Tribunal would have been to consider all of the evidence relating to the Claimant's impairment and assess (as at the date of the decision to dismiss) whether it was likely that the impairment would have lasted for at least 12 months, or would have recurred, had he not been dismissed.
Comment
When considering the duration of impact limb of the definition of disability, and in particular the interpretation of the word ‘likely’, the case of SCA Packaging v Boyle made it clear that, when assessing recurrence, 'likely' should be interpreted as meaning ‘could well happen’, which is a lower threshold than the balance of probabilities.
This case is a reminder that, in order to assess whether someone was disabled for the purpose of the Act, it is important to ensure that proper consideration is given to all elements of the definition of disability, otherwise the decision will not stand. The impact of a dismissal that is alleged to have been discriminatory should be ignored in determining this issue.
Authored by Tim Scott and Sarah Magee.
