Definition of disability - duration of impact

Parnaby v Leicester City Council UKEAT/0025/19

Why care?

A person is disabled under section 6 Equality Act 2010 (2010 Act) if they have a physical or mental impairment that has a substantial and long term adverse impact on the person's ability to do normal day to day activities. The impairment has a 'long term' negative effect where it has lasted, or is likely to last more than 12 months in total.

Here the employment tribunal had to assess whether the employee's disability was 'long term' for the purposes of the 2010 Act where he had been dismissed for capability reasons relating to work related stress and had argued that his dismissal was discriminatory. The question to be considered was the relevant time to assess the likelihood of an impairment being 'long term'.

The House of Lords case SCA Packaging v Boyle HL [2009] UKHL 37 shed light on whether a disability is likely to last more than 12 months. It considered this likelihood of recurrence was whether it "could well happen" in the future which means "more probable than not", which the tribunal in this case failed to address.

The case

Mr Parnaby was employed by Leicester City Council (LCC). He had two periods of long term sickness absence, the later one being from January to June 2017. The reason stated for this absence was depression as a result of work related stress. In July 2017 LCC dismissed Mr Parnaby for capability reasons related to his long-term sickness absence.

Mr Parnaby brought an employment tribunal claim arguing that the dismissal was an act of disability discrimination. Although he could show that his mental impairment had a substantial adverse impact on his normal day to day activities, at the time of his dismissal, which he claimed was an act of unlawful discrimination, the impairment had not lasted for twelve months. The tribunal recognised that Mr Parnaby had suffered from an impairment arising from work related stress and that the impairment did have a substantial adverse effect on his ability to carry out normal day to day activities. However it dismissed his claim, finding that the impairment was not 'long term'. His difficulties were related to the workplace and his condition improved following dismissal. Mr Parnaby appealed.

The Employment Appeal Tribunal (EAT) allowed the appeal. The tribunal had focused on Mr Parnaby's position at the time of the dismissal, which was the alleged discriminatory act, when assessing whether the impairment would likely be 'long term'. It had wrongly concluded that the dismissal would limit or remove his impairment. Instead the tribunal should have focused on the employee's condition prior to his dismissal and whether the impairment was likely to last twelve months or whether it might recur in the future. The tribunal should not have made an assumption about whether removing the stress would remove the impairment. The EAT remitted the case to a different tribunal for a rehearing.

What to take away

Taking away the reason for an employee's illness, in this case work related stress, by dismissing the employee may lead to improvements in their condition. However this does not necessarily mean that the 'long term' aspect of the disability definition will not be met, because employers must still assess the likely duration of the impairment and whether it could recur. Separately, employers should be cautious in making decisions to dismiss individuals who have been absent due to long term sickness.