Nissa v Waverly Education Foundation Ltd & Anor

For the purposes of Equality Act 2010, whether an impairment is likely to have a long-term effect requires a realistic, forward-looking assessment of whether that effect could well happen. The focus is on the effects of the impairment, not on whether it has received a particular diagnosis. The assessment must use the evidence available during the material period and must not be distorted by hindsight.

A substantial adverse effect is more than minor or trivial. The tribunal must assess the deduced effects of the impairment, disregarding mitigation by medication, and must engage with relevant medical and other evidence. A decision which overlooks plainly relevant evidence on those matters is unsafe.

The Claimant, formerly employed as a science teacher, alleged disability discrimination. She relied on physical symptoms ultimately diagnosed as fibromyalgia and on mental distress. The Employment Tribunal held that, during the material period from 16 December 2015 to 31 August 2016, she was not a disabled person within section 6 and Schedule 1 of the Equality Act 2010.

The Tribunal found that the effects of her impairments were not likely to be long-term. Alternatively, it found that she had not established a substantial adverse effect on normal day-to-day activities. The Claimant appealed both findings. The central issue was whether the Tribunal had applied the correct approach to the statutory requirements of long-term and substantial adverse effect.

1. Appeal allowed. The Employment Tribunal erred in its approach to both long-term effect and substantial adverse effect under section 6 and Schedule 1 of the Equality Act 2010.

2. For the long-term issue, the relevant question was whether, assessed from within the material period, it could well happen that the effects of the accepted impairments would last at least 12 months. A diagnosis might be evidentially relevant, but its absence was not determinative. The Tribunal wrongly focused on the absence and timing of a fibromyalgia diagnosis rather than on the impairment and the wider evidence of its effects. It also adopted an unduly narrow approach to the risk and relied on a prognosis which post-dated the material period, despite stating that it would avoid hindsight.

3. For the substantial-effect issue, the Tribunal had to assess the effects which the impairments would have had without mitigation by medication. Its reasoning did not show that it had carried out that exercise. It also failed to engage with Dr Allcock’s contemporaneous report, which described restrictions affecting daily activities, or with the wider medical evidence and periods of sickness absence. The Tribunal’s statement that no clinician had referred to specific activities which the Claimant could not perform or had substantial difficulty performing was incorrect. Its conclusion was therefore unsafe.

4. The EAT declined to substitute a finding that the Claimant was disabled. Assessment of the Claimant’s evidence and of the effects of her impairments remained for a tribunal applying the correct tests and considering all relevant evidence.

5. The case was remitted for a fresh determination by a different Employment Tribunal. The errors went to the heart of the original Tribunal’s approach, and the preliminary issue was short enough for a fresh hearing to be proportionate.

• Employment Appeal Tribunal: allowed the Claimant’s appeal and remitted the disability issue for a fresh determination by a different Employment Tribunal.
• Employment Tribunal, Birmingham: held, in a judgment sent on 13 September 2017, that the Claimant was not disabled for the relevant period under section 6 and Schedule 1 of the Equality Act 2010.