Employment disputes often arise because an employer does not consider that an employee’s condition is a disability that qualifies them for protection under the Equality Act 2010. It is therefore important that the definition of disability is understood and interpreted in a consistent way.

A person has a disability if they have a physical or mental impairment which has a substantial and long-term negative effect on their ability to carry out normal day-to-day activities. The effect of an impairment is long-term if it has lasted for at least 12 months or is likely to do so. In 2009, the House of Lords ruled that the word ‘likely’ in this context should be taken to mean ‘could well happen’ (SCA Packaging Ltd. v Boyle). Furthermore, an impairment which would be likely to have a substantial adverse effect but for the fact that measures are being taken to treat or correct it is to be treated as having that effect.

A recent case on this topic (Nissa v Waverly Education Foundation Limited) concerned a science teacher who began suffering from a physical impairment in December 2015. On 12 August 2016, her condition was diagnosed as fibromyalgia, together with mental distress, and she resigned at the end of that month. She then brought a claim of disability discrimination.

In considering whether her impairments were such that she qualified as a disabled person under the Act for the period in question, the Employment Tribunal (ET) asked whether, viewed at that time rather than with the benefit of hindsight, their effect was likely to last the 12 months necessary to meet the definition of long-term. The ET found that the various clinicians and therapists she had seen between December 2015 and June 2016 had made no suggestion that they expected her symptoms to be long-lasting. Indeed, her consultant had expressed the hope that they might slowly improve once she was no longer working. This led the ET to conclude that her condition was not likely to be long-term. The ET also found the evidence put forward insufficient to reach a conclusion that her impairments had a substantial effect on her everyday life.

In upholding the woman’s appeal against both those decisions, the Employment Appeal Tribunal found that in determining whether or not the effect of her impairments was long-term, the ET had focused on the diagnosis of fibromyalgia, rather than its effect. This had led it to adopt a too narrow approach to the word ‘likely’, rather than looking at the reality of the risk that the effect could well be long-term on a broad view of the evidence available. Furthermore, having stated that it had avoided the trap of viewing the issues with the benefit of hindsight, the ET had done precisely that when putting emphasis on her consultant’s prognosis, which post-dated the material period.

In deciding that the effect of her impairments was not substantial, the ET had failed to show that it had assessed their impact absent the benefit of medication and had failed to take account of her own evidence, and detailed statements included in her doctor’s report, as to their effect on her ability to carry out normal day-to-day tasks. This failure rendered the ET’s conclusion unsafe.

The claim was remitted to a different ET to address these matters adopting the correct tests.