Search

How can we help?

Icon

Assessment of whether disability is long-term

A claimant will be disabled, under the Equality Act 2010, if they have a mental or physical impairment and that impairment has a substantial and long-term adverse effect on their ability to carry out normal day to day activities.  An impairment is likely to be viewed as ‘long-term’ if it has lasted for at least 12 months, is likely to last for at least 12 months or it is likely to last for the rest of the person’s life.  If the impairment ceases to have a substantial adverse effect at any point, it will be treated as continuing to have the effect if the effect is likely to recur.  

In Parnaby v Leicester City Council, the claimant was dismissed in July 2017 due to his long-term sickness absence.  He had suffered with work related stress on two occasions, from 15 April – 31 May 2016 and from January to June 2017.  The claimant claimed that his dismissal was unfair and discriminatory but also that various acts taking place before his dismissal were discriminatory on the grounds of disability.   The ET viewed the two periods of absence as discrete events and found that neither was sufficiently long-term.  In particular, the ET held that the second period of absence was a reaction to workplace difficulties and that, as there was limited communication between the claimant and his GP from mid-July 2017 until 10 April 2018 (ad hoc correspondence only stating that the claimant struggling ‘on and off’), the claimant’s condition had improved when he was dismissed.

This case highlights the importance of assessing all elements of the test for disability at the relevant times

The EAT upheld the Claimant’s appeal.  It highlighted that ‘likelihood’ is not something to be determined with hindsight.  The question of whether the impairment was likely to last for 12 months (or likely to recur) should be assessed at the time of the acts in question.   It said that the dismissal came after many of the acts complained of and, as such, the dismissal should not have been considered.  The ET did not demonstrate how it would have resolved the question of long term effect prior to any decision to dismiss and the EAT felt that this was not a case where it could safely conclude that there was only one answer.  Further, the ET had made an assumption that dismissal would limit the claimant’s impairment and, as such, had not properly considered the question of recurrence. The EAT remitted the case to a different Employment Tribunal for a rehearing.

This case highlights the importance of assessing all elements of the test for disability at the relevant times and ensuring all the circumstances are considered in determining whether the impairment is likely to last for more than 12 months and/or likely to recur in the future.

About this article

Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

About this article

Read, listen and watch our latest insights

art
  • 13 February 2025
  • Public Procurement

Procurement Act 2023 – Coming into force on 24 February 2025

After a four-month delay from its original commencement date of 28 October 2024, the new Procurement Act 2023 is now due to come into force later this month on 24 February 2025.

art
  • 13 February 2025
  • Commercial Real Estate

What are restrictive covenants and how do they relate to the planning system?

Restrictive covenants on use can be one of the more problematic aspects of a property transaction. Even if the restrictive covenants do not affect one’s development plans for the land, they may be an issue for subsequent buyers or future lenders.

art
  • 13 February 2025
  • Immigration

Skilled Worker New Entrant Exemption – is it a good investment?

The “new entrant” exemption under the UK Skilled Worker Visa is a vital but often underappreciated element of the immigration system. It offers valuable benefits to both employers and employees.

art
  • 12 February 2025
  • Employment

Balancing the Equality Act: Lessons from Higgs v Farmor’s School

The Court of Appeal have today issued a judgment in the Kristie Higgs v Farmor’s School case, in which it has ruled that the actions of the school in dismissing Ms Higgs for expressing LGBT+ critical posts on her personal Facebook account, was unlawful discrimination on the grounds of religion or belief.

Pub
  • 10 February 2025
  • Privacy and Data Protection

Frequently asked questions on data retention

In this podcast, Jesse Akiwumi and Harry Berryman, members of the Data Protection team at Clarkslegal, address the top frequently asked questions we receive about data retention.

art
  • 10 February 2025
  • Litigation and dispute resolution

We are living in a material world, but am I a material breach?

In this article we will be looking at the meaning of these different types of breach.