Disability and the effect of impairment

A crucial aspect of the definition of disability under the Equality Act is that the effect of the impairment in question must: either have lasted, or been expected to last, for 12 months.

In Parnaby v Leicester City Council the employee was dismissed when he had been off sick with depression caused by work-related stress for just six months. The Tribunal held that he was not disabled at that time.

An important feature of the Tribunal’s reasoning was that the employee’s impairment was caused by the stress he had been suffering at work.

The Tribunal reasoned that since his dismissal removed the cause of the impairment, there was no reason to expect that it would continue to last for a further six months – indeed it appears that the employee had indeed made a full recovery before the full 12 months had elapsed.

The EAT held that this was the wrong approach.

The dismissal was the very act that the employee was complaining about and could not be relied on by the employer as something that prevented him from being disabled.

The situation had to be assessed not with the benefit of hindsight, but on the basis of the facts known at the time the decision to dismiss was taken.

Another problem with the Tribunal’s decision was that an impairment must be treated as continuing if it is ‘likely to recur’. It was well established that this just means that ‘it could well happen’ that the impairment would recur in the future.

The Tribunal should have considered evidence of the employee’s earlier periods of ill-health in deciding this issue. The appeal was upheld.