Thyagarajan v Cap Gemini UK Plc

For the long-term limb of disability discrimination, the likelihood that an impairment’s effects will last 12 months or recur is assessed prospectively at the relevant time. “Likely” means that the event could well happen. A short period of heightened risk does not establish a long-term effect where, after that period, recurrence is highly unlikely. The tribunal may reach that conclusion from accepted medical evidence and the facts found.

The Claimant appealed against an Employment Tribunal decision, made following a pre-hearing review, that he was not disabled for the purposes of the Equality Act 2010.

He had suffered retinal detachments in both eyes shortly after starting employment and underwent surgery. The Tribunal accepted medical evidence that visual recovery was expected within three months and that the risk of a further detachment following surgery was low. It rejected the Claimant’s evidence that adverse effects continued until the hearing.

The appeal alleged that the Employment Judge had failed to apply a prospective assessment when deciding whether the effects were likely to last 12 months or recur.

1. Appeal dismissed. Reading the Employment Judge’s Reasons as a whole, she had not failed to apply the prospective approach required when determining whether the impairment’s effects were long-term.
2. The relevant inquiry was whether, during the period between the Claimant’s return to work and dismissal, a further retinal detachment could well occur over the following 12 months. The same conclusion followed even if the earlier date advanced by the Claimant were used.
3. The accepted medical evidence showed that the greatest risk of re-detachment was in the three to four months after a detachment. That risk period was reflected by the further left-eye episode in April 2011. If a further detachment did not occur in that period, the chance thereafter was about 2 per cent after 12 months.
4. Applying the meaning of “likely” in SCA Packaging Ltd v Boyle, [2009] ICR 1056, that low chance did not mean that recurrence could well happen over the next 12 months. The effects were therefore neither likely to last for the required period nor likely to recur within the relevant statutory provisions.
5. The Employment Judge was entitled to conclude that the effect was not long-term. Her finding that the Claimant was not disabled was upheld.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal upheld the Employment Judge’s ruling that the Claimant was not disabled.
• Employment Tribunal (Birmingham): At a pre-hearing review heard on 11–12 July 2013, the Employment Judge held that the Claimant was not disabled within the meaning of the Equality Act 2010. Written reasons were promulgated on 12 September 2013.