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Disability Discrimination Test Case – What is a ‘Long Term’ Impairment?

In order for a person to be viewed as disabled in an employment law context, they must suffer from a physical or mental impairment that is both substantial and ‘long term’ – but what precisely does that phrase mean? The Court of Appeal tackled that issue in an important test case.

The case concerned two workers employed by the same company who each lodged disability discrimination claims. Both were said to suffer from depression and one of them from post-traumatic stress disorder. They contended, amongst other things, that they were subjected to less favourable treatment when their employer shifted their office seating positions so that they were no longer close to each other, resulting in feelings of isolation.

Following a preliminary hearing, an Employment Tribunal (ET) found that they were disabled within the meaning of the Equality Act 2010. It did so on the basis that they suffered from mental impairments that had a substantial and long-term adverse impact on their ability to carry out normal, day-to-day activities. That conclusion was later confirmed by the Employment Appeal Tribunal.

In upholding the employer’s appeal against that outcome, the Court noted that the Act defines a long-term impairment as one that has lasted for at least 12 months or is likely to last for at least 12 months into the future. The latter test requires ETs to carry out an assessment or prediction as to whether the effect of an impairment is likely to last at least 12 months as from the date of the alleged discriminatory act.

In carrying out such an assessment, ETs are not entitled to take into account events that occur after the alleged discrimination. The wording of the ET’s decision, in particular its frequent use of the present tense, indicated that it had not looked back to the position that pertained when the discrimination was alleged to have occurred. The clear impression was that it had instead considered whether the workers were disabled as at the date of the hearing.

There was a marked absence in the ET’s decision of any reference to the dates on which the alleged discriminatory acts were said to have taken place. It erred in law in failing to ask itself whether, as at the date of those acts, the substantial adverse effects of the mental impairment from which the workers suffered were likely to last for at least 12 months. The preliminary issue was sent back to the ET for redetermination in the light of the Court’s ruling.

Published in
10 May 2021
Last Updated
25 May 2021