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January Employment Bulletin – Sick leave and disability discrimination

A person is disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to complete day to day activities. To be considered a long-term disability, Read more...

A person is disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to complete day to day activities. To be considered a long-term disability, an impairment must have lasted, or be likely to last, at least 12 months. An impairment can be treated as continuing if it has stopped but is likely to recur. 

In Parnaby v Leicester City Council, the employee was a head caretaker. He was dismissed for long term sickness absence due to work related stress and consequently, brought several discrimination claims. The tribunal’s first job was to decide if he was disabled. It was found that as his work-related stress had not lasted 12 months by the time his employment ended, and he had not seen his GP since then, his condition did not meet the ‘long-term’ requirement. Particularly as his recovery had coincided with his employment ending; therefore not meeting the requirements to be considered long-term. 

The EAT said the tribunal had applied the test incorrectly. The tribunal had looked back at the employee’s position with the benefit of hindsight, noting that his illness had stopped at the point of dismissal. This was the wrong approach. Instead, they should have considered what the position had been at the time  decisions were made by the employer, before the employee’s dismissal. At that point, was the employee’s impairment was likely to last 12 months or recur? The employee’s dismissal had to be disregarded when applying this test because it was his dismissal, and the matters leading up to it, which the employee claimed had been discriminatory. The case was sent back for a new tribunal panel to decide whether his impairment was long-term. 

This case shows how complex the disability test can be, tripping up even experienced judges. Because someone’s impairment hasn’t yet lasted 12 months, it does not automatically mean they do not meet the disability test. To avoid these misjudgements, take care when contemplating dismissal for sick leave related to any work related stress and ensure you have done everything you can to address the root cause of the issue first.