EAT clarification on determining 'long-term' nature of a disability

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25 September, 2019

Ruth Rule-Mullen
Partner and Head of Public Sector Employment

In Nissa v. Waverly Education Foundation, the claimant, a science teacher, suffered from Fibromyalgia. She had suffered from the condition from December 2015, and 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 day-today activities. Her claim was challenged on the basis that she wasn't officially diagnosed until August 2016 and that her symptoms may improve if she was no longer in employment, meaning it could not be likely that the effects would be long term.

The EAT held that in defining 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. Employers should look at the reality of the risk - whether it could well happen on a broader view of the evidence and not with the benefit of hindsight. The employer had applied hindsight and focused on the timeframe of diagnosis as opposed to the actual effects of impairment and likely possibilities at that point in time.

As a result of this case, when employers are addressing similar issues regarding potential disability claims, a view must be taken based on the state of play at the time the circumstances arose. Applying the benefit of hindsight could potentially open up employers to criticism and affect the robustness of any defence to litigation.

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