Parnaby v Leicester City Council (DISABILITY DISCRIMINATION)

For the purposes of Equality Act 2010, whether the substantial adverse effect of an impairment was likely to last at least 12 months or recur must be assessed prospectively, by reference to the circumstances at the time of each alleged discriminatory act or decision. “Likely” means that the outcome could well happen.

The tribunal must not use hindsight. Where dismissal is itself alleged to be discriminatory, it errs if it treats the effects of work-related stress as time-limited because dismissal was subsequently implemented. The tribunal must instead assess likely duration and recurrence before that decision was taken, considering all relevant evidence.

The Claimant had been employed as a head caretaker until his dismissal for capability reasons in July 2017, following sickness absence attributed to work-related stress. He alleged that the dismissal, aspects of absence management, an Occupational Health referral and a failure to make reasonable adjustments were disability discrimination.

The Employment Tribunal at Leicester held at a preliminary hearing that he had an impairment with a substantial adverse effect, but was not disabled because the impairment was not long-term. It treated two periods of stress as distinct and relied on improvement after dismissal.

The Claimant appealed against the approach to likely duration and recurrence under Schedule 1 to the Equality Act 2010.

1. Appeal allowed. The Employment Tribunal’s conclusion that the Claimant was not a disabled person could not stand.

2. Under section 6 and paragraph 2 of Schedule 1 to the Equality Act 2010, the issue was whether the substantial adverse effect had lasted 12 months or, assessed at the date of each act or decision complained of, was likely to last at least 12 months or recur. Applying [2008] ICR 431 and [2009] ICR 1056 HL, likelihood is assessed from the evidence then available and means that the event could well happen.

3. The Tribunal was entitled to treat the two periods of work-related stress as separate and its finding that the later period had not actually lasted 12 months was unchallenged. But its reasoning on likely future duration and recurrence relied on the Claimant’s improvement after dismissal and on the ending of the workplace circumstances causing the stress.

4. That was an impermissible hindsight assessment. Dismissal was itself an alleged discriminatory act. The Tribunal had to consider the position before the dismissal decision was taken and implemented, rather than assume the removal of the alleged cause of the impairment. The same error infected its treatment of recurrence.

5. The EAT could not safely conclude that only one answer was possible. The question whether the impairment was long-term was remitted to a differently constituted Employment Tribunal for rehearing.

• Employment Appeal Tribunal: allowed the Claimant’s appeal and remitted the long-term disability issue for rehearing.
• Employment Tribunal, Leicester: Employment Judge Ahmed, sitting alone, held on 9 August 2018, with judgment sent on 29 October 2018, that the Claimant was not disabled for the purposes of the Equality Act 2010.