The Guinness Partnership v Szymoniak

For disability under Equality Act 2010, an Employment Tribunal must determine the effect of the impairment. It must decide whether that effect on normal day-to-day activities is substantial and long-term. It is not enough to find that the medical condition itself has existed for 12 months or more.

The evidence required is fact-sensitive. Expert medical evidence may assist, particularly where a mental impairment raises questions of duration or recurrence, but the statutory issue remains for the tribunal. Where the tribunal has not made findings on the impairment’s effects, its disability finding cannot stand.

The claimant brought claims for disability discrimination and unfair dismissal. As a preliminary issue, the Manchester Employment Tribunal held that he was disabled at the date of dismissal because of a mental impairment involving anxiety and depressive symptoms.

The employer appealed the disability ruling. It contended that the tribunal lacked proper expert evidence and had treated the duration of the condition as sufficient without deciding whether its effects on normal day-to-day activities were substantial and long-term.

The appeal concerned the correct application of section 6 of the Equality Act 2010 to fluctuating mental-health symptoms.

1. Appeal allowed. The Employment Tribunal erred in law. Section 6 of the Equality Act 2010 requires an impairment to have a substantial, long-term adverse effect on the person’s ability to carry out normal day-to-day activities.

2. The tribunal concentrated on the period for which the claimant’s condition had existed and was likely to continue. It did not identify the effects which it found the impairment had caused, or decide whether those effects were substantial and long-term. The fact that a condition has lasted for more than 12 months does not remove the need for that assessment.

3. The long-term requirement concerns the effect of the impairment, not simply the impairment. A fluctuating condition may still satisfy that requirement, but the tribunal must make the necessary findings about its effects.

4. It was not possible to substitute a decision that the claimant was or was not disabled. The tribunal might have been able to reach a permissible conclusion from the claimant’s evidence and contemporaneous medical material. The need for expert medical evidence is case- and fact-sensitive, although expert evidence may assist with the issues raised by section 6.

5. The disability issue was remitted for fresh determination by a differently constituted Employment Tribunal. That tribunal may consider whether directions for expert medical evidence, potentially from a jointly instructed expert, are appropriate.

• Employment Appeal Tribunal: Allowed the employer’s appeal and remitted the disability issue for a fresh hearing before a different Employment Tribunal.

• Manchester Employment Tribunal: In a reserved judgment sent on 7 November 2016, held as a preliminary issue that the claimant was a disabled person for the purposes of section 6 of the Equality Act 2010.