Disability Discrimination – what is considered ‘long-term’?

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How long after diagnosis does an employee meet the definition of a disabled person? The court has ruled in a case where it might not be as long as you think. Read the full judgement here.

Teacher, Mrs Nissa, suffered with the symptoms of Fibromyalgia from December 2015 – which she claimed caused her physical and mental impairment so much so, she resigned from her job, effective from 31st August 2016 and claimed disability discrimination at an Employment Tribunal.

She claimed her impairment caused her to suffer a substantial and long-term adverse effect on the ability to carry out her normal day-to-day activities, but her employer disputed this and the Employment Tribunal agreed. The medical diagnosis of Fibromyalgia was not made until 16th August 2016 and the ET noted her doctors had told her that her symptoms may slowly improve, so it could not be said to have been “likely” that the effects would be long-term.

But the Employment Appeal Tribunal disagreed and sided with Mrs Nissa – they said the Employment Tribunal had taken the wrong approach and should have taken ‘likely’ to mean ‘it could well happen’.

The EAT also said the ET’s original decision on ‘substantial effect’ failed to take into account the relevant evidence, including testimony that attempting to carry out many of her daily chores was ‘extremely difficult, painful and exhausting’.

The case has been remitted to a different Tribunal for reconsideration.

But what does this mean for your business?

The case highlights the need to examine the ‘bigger picture’ and not to just look at things such as disabilities as being black and white.

It also highlights the value of medical evidence when managing employees who are off long-term or who claim to have a disability, in order to make decisions. As an employer you need the employee’s permission if you are approaching their doctor or consultant.

Speak to your HR adviser about how to obtain medical evidence or access the employee consent letter on the Knowledge Portal. Or if you want to find out more about our services and how they can help with managing disabilities in the workplace, call 0844 327 2293 and speak to the team.

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