J Williams v Newport City Council

An impairment may have a substantial adverse effect on normal day-to-day activities where it prevents an employee from returning to work as a whole. This is so even if the employee could perform each ordinary work task in isolation, save for a specialised task, where a continuing work requirement causes disabling anxiety and makes a return impossible.

For long-term effect under Equality Act 2010, “likely” means that an effect could well happen. An indefinite work requirement, with no indication that it will be removed, may make it inevitable that the adverse effects are likely to last at least 12 months.

The claimant, a senior social-work practitioner, was absent from work from March 2017 until her dismissal in September 2018. Her absence followed notification that she might have to attend family-court hearings. A previous court appearance had traumatised her and caused severe anxiety.

The Employment Tribunal found that she had a mental impairment throughout the relevant period. It nevertheless held that she was not disabled because, after August 2017, she could perform all ordinary work activities other than attending court, which it considered was not a normal day-to-day activity. It dismissed her disability discrimination claims but upheld unfair dismissal.

The claimant appealed the finding on disability status. The central issue was whether the continuing anxiety caused by the retained possibility of court attendance had a substantial and long-term adverse effect on normal day-to-day activities.

1. Appeal allowed. The Tribunal erred in its assessment of substantial adverse effect. It had found that the claimant’s mental impairment continued throughout her absence and that she could not return to her job unless the respondent removed the possible requirement to attend court.

2. The respondent consistently refused to remove that requirement. The claimant therefore remained unfit for work because of the anxiety caused by the prospect of court attendance. The fact that she could perform other work tasks when considered individually did not answer the statutory question. Her ordinary work involved normal day-to-day activities, and the impairment prevented her from carrying them out through an inability to return to work at all. Applying the approach in [2007] ICR 1 and [2007] ICR 1 522, the impairment accordingly had a substantial adverse effect throughout the relevant period.

3. The Tribunal was entitled to regard attendance at court, in this role, as a specialised activity rather than a normal day-to-day activity. The task could not properly be reduced to its ordinary component acts. That issue was not determinative, however. Had it been determinative, the Tribunal should have explained its conclusion more fully.

4. The effect was long-term. From 17 March 2018 it had in fact lasted at least 12 months under paragraph 2(1)(a) of Schedule 1 to the Equality Act 2010. During the first year, the requirement was indefinite and there was no indication that the respondent would reconsider it. Applying [2009] UKHL 37, the effects could well have lasted at least 12 months.

5. Only one conclusion was properly open on the facts found. The EAT substituted a decision that the claimant was a disabled person throughout the relevant period. The disability discrimination claims were remitted to the Employment Tribunal, with the Regional Employment Judge to determine panel composition.

• Employment Appeal Tribunal: Allowed the claimant’s appeal against the finding that she was not disabled, substituted a finding that she was disabled throughout the relevant period, and remitted the disability discrimination claims.
• Employment Tribunal: Dismissed the claimant’s claims under the Equality Act 2010 after finding that she was not disabled at the material times. It upheld her unfair dismissal complaint.