How to Interpret 'Long-Term' - Disability Discrimination

A person is disabled under the Equality Act 2010 if they have a physical or mental impairment that has a 'substantial' and 'long-term' negative effect on their ability to do normal daily activities. Guidance has been given by the Employment Appeal Tribunal (EAT) on how 'long-term' is to be interpreted for these purposes.

The Facts

Mrs Nissa was a teacher who started suffering from fibromyalgia symptoms in December 2015. Fibromyalgia is a condition which causes widespread pain all over the body. The condition can be difficult to diagnose and treatment is generally focused on managing pain and improving quality of life. Mrs Nissa resigned from her job from 31 August 2016. Following her resignation, she brought a claim for disability discrimination against her employer. This led to an employment tribunal hearing being arranged to determine whether Mrs Nissa met the definition of a 'disabled person' under the Equality Act. At first instance, the Employment Tribunal noted the condition was not officially diagnosed until 12 August 2016 and, at the time of her diagnosis, it was suggested that her symptoms may improve once she left employment. This led the tribunal to conclude that it was not "likely" that the condition would be long-term. On appeal, the EAT concluded that the tribunal had taken the wrong approach when looking at "long-term" and "substantial," focusing on the diagnosis rather than the effects of the condition.

The Decision

In this case the EAT said that when considering if it is likely that there is going to be a 'long-term' effect, the relevant question would be whether 'it could well happen,' rather than looking back in hindsight at what has happened. This makes the test much broader than the definition of "likely to happen" that the Employment Tribunal initially applied.

Best Practice

Conditions such as fibromyalgia, which are difficult to diagnose and have varying and wide ranging symptoms, can make it difficult for employers to say with certainty whether the legal definition of disability is met. This case shows that, although cases must be reviewed on a case-by-case basis, the test for what counts as a 'long-term effect' can be interpreted broadly and employers should therefore be cautious when considering any symptoms their employees may present.

For more information, please contact Gareth Edwards in our Employment Law team on 0117 314 5220.