How is 'long term' to be judged for the purposes of the definition of disability?
The EAT gives guidance in Nissa v Waverly Education Foundation.
Mrs Nissa was a Science Teacher. From December 2015 she suffered from symptoms of fibromyalgia. She resigned, effective from 31 August 2016. She brought a claim for disability discrimination, claiming her impairment caused her to suffer a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities. The employer disputed this.
An employment tribunal noted that that a medical diagnosis of "fibromyalgia" was not made until 12 August 2016, and was subject to a caveat in October that her symptoms might slowly improve now she was no longer in employment. So it could not be said to have been "likely" that the effects would be long-term. Even if the effects of the Claimant's impairment had been long-term, the tribunal would, in the alternative, have found she had failed to establish that they had given rise to the relevant substantial effect.
But the EAT considered that the tribunal had taken the wrong approach. In cases where it is necessary to project forward to determine whether an impairment is long-term, the House of Lords in SCA Packaging Ltd v Boyle clarified that in considering whether something was "likely", it must be asked whether "it could well happen". The tribunal in Nissa had focused on the question of the diagnosis rather than the effects of the impairment and had adopted too narrow an approach. Keeping its focus on the position prior to 31 August 2016 it should have looked at the reality of risk - whether it could well happen - on a broader view of the evidence available and not with the benefit of hindsight.
Nor could the tribunal's decision on "substantial adverse effect" stand. It failed to take into account relevant evidence, including Mrs Nissa's testimony that attempting to carry out many of her daily chores was "extremely difficult, painful and exhausting".
The case was remitted to a different tribunal for reconsideration.
Thanks to Dr John McMullen of Stone King LLP for preparing this case summary.
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