You’re probably familiar with the definition of a disability under the Equality Act and the fact that somebody has to have suffered from their physical or mental impairment for more than 12 months in order for it to be sufficiently long term in its effect on someone’s ability to carry out normal day-to-day activities. But in real-life working out when somebody qualifies as having become disabled can be a challenge for employers.
A recent case of Appleby v Colborn Community Primary School Governors illustrates this. The employee concerned had had a baby in 1992 but sadly, shortly thereafter, it died causing her to suffer from anxiety and depression but over time she recovered. She then got a job as a Teaching Assistant at the school in 2007. Later in 2007 she was diagnosed with narcolepsy, and following the arrival of a new Head Teacher she had some periods of absence between then and 2011 and she herself argued she had become disabled with effect from the Autumn of 2011.
In early 2012 she became distraught at rumours that babies born in Spain in the early 1990’s, possibly including her own, may not have died but instead been kidnapped and trafficked. The school found managing her absence difficult in terms of covering her duties in the school, and after a protracted sickness absence management process she was dismissed in October 2013.
The tribunal found that the Autumn of 2011 she suffered from a disability being the narcolepsy but that from April 2013 she also suffered from a further disability being her mental impairment. However, it went on to dismiss her claim amongst other things because at the time that the employer had commenced a monitoring policy in March 2012 she wasn’t suffering from the mental impairment. The employee didn’t accept the tribunal’s analysis and appealed the matter arguing that the tribunal had erred in its conclusions as to when she suffered from her mental impairment disability, which then lead to errors in relation to its other reasoning.
The Employment Appeal Tribunal agreed with the tribunal and dismissed the appeal, it said that the effects experienced by this lady before April 2013 were part of a normal grief reaction which was unlikely to last more than 12 months and any of the other effects which may have suffered prior to April 2013 were likely to have been attributable to the narcolepsy thus they felt prior to 2013 she did not have a mental impairment.
The reason why this case interests me is often an employer is in a situation where an employee becomes unwell perhaps with depression or anxiety having, not to their knowledge, suffered from these things before, perhaps having worked for them for number of years successfully. There is always the worry that there is something lurking in the background that we don’t know about in terms of the individuals’ history and things that may have happened to them in an earlier life perhaps whilst working elsewhere. This case illustrates that unless there’s a real pattern of somebody suffering from a particular condition somebody who did perhaps have a spell of depression a number of years ago may not be able to successfully argue that the two things are connected and are likely to have to show the fresh bout of depression is going to last for six months or more. Given that your average GP will tell you that a spell of depression and anxiety might be easily treated with a course of antidepressants and that somebody is likely to recover in six months, it makes it harder for somebody to then argue the fresh depression is a disability. Clearly employers are going to have to take medical advice in any given situation but you shouldn’t just jump to the conclusion that because there may be a history or a pattern or somebody is asserting they are disabled the law would necessary find that they are.
A tribunal’s focus is likely to be on the extent to which somebody’s condition has had an effect on their ability to carry out normal day-to-day activities and the employee should expect to provide evidence of this.