Defining Disability
When managing staff with at least two years’ continuous service, employers are obliged to act fairly when terminating staff due to incapability due to health in order to mitigate the risk of a claim for unfair dismissal. This will usually include obtaining an occupational health report and deciding whether it is reasonable to wait any longer for a long-term absent employee to return to work in some capacity.
However, those staff who have a disability under the Equality Act 2010 have additional employment protection throughout their recruitment and employment, irrespective of length of service. At the end of the day, it is only an employment tribunal which can decide whether someone is disabled (unless they have a deemed disability such as cancer), but you wouldn’t want to risk such a finding and so it is generally advisable to treat an employee with health issues as potentially disabled in any event. If necessary, you can challenge that the employee is disabled when faced with a claim.
In the last month, there have been several noteworthy cases dealing with disability discrimination.
In the case of Sullivan v Bury Street Capital Ltd, an employee had suffered from paranoid delusions. However, the employment had found that these delusions only had a substantial adverse effect (“SAE”) on the employee’s day-to-day activities on two separate occasions on 2013 and 2017 for several months on each occasion (so less than the twelve month period required for an SAE to be long-term). The tribunal also found that, following their occurrence in 2013 after a short relationship with a Ukrainian woman, the delusions were not “likely to recur”. The recurrence in 2017 was triggered by discussions relating to remuneration. The tribunal found that, following the end of those discussions, a further recurrence was not “likely to recur”. The EAT and the Court of Appeal both held that the tribunal was permitted to have found that the SAE of the delusional beliefs did not persist for at least twelve months and was not long-term. The tribunal was therefore entitled to find that the claimant was not disabled.
In Primaz v Carl Room Restaurants Ltd and others, the claimant made various allegations of disability discrimination relating to events in 2018/2019. She had had a benign “pilocytic” or “fibrallary” brain tumour removed in 2008. Although there was no reference to cancer in her medical records, current Public Health England (“PHE”) guidance states that her type of tumour was considered to be cancer. The claimant therefore argued that she had a deemed disability (the cancer) and that her cancer-induced illnesses (including epilepsy and vitiligo) were also disabilities. In relation to her epilepsy, the claimant had decided to avoid what she considered to be potential triggers such as coffee, alcohol, cosmetics and ordinary cleaning products. For her vitiligo, she attempted to avoid sunlight.
The tribunal found that the Claimant’s tumour had not been cancer, that she would have had cancer at the relevant time in 2018/2019 in any event and that she had produced no medical evidence to show that her epilepsy and vitiligo were cancer induced. However, it did find that her epilepsy and vitiligo were disabilities in their own right on the basis that she had adopted a “spartan lifestyle” as an coping strategy and that this amounted to a SAE on her day-to-day activities.
On appeal, the EAT held that the PHE guidance should have been sufficient evidence that the claimant’s tumour should have been considered to be cancer, but that the tribunal was correct to find that the claimant no longer had this deemed disability at the relevant time. The EAT also held that it wasn’t sufficient for the claimant to rely on her own beliefs and coping strategies as amounting to a SAE where there was no medical evidence to support her beliefs or strategies and she refused to take medication which had been prescribed for her medical conditions. In these circumstances, the tribunal should have disregarded the claimant’s coping strategies when examining how her epilepsy and vitiligo impacted on her day-to-day activities.
Both these cases show that the issues of long-term and SAEs are highly fact-sensitive and that the availability or absence of medical evidence will be highly relevant. It is therefore important to obtain as much relevant medical evidence as possible both when considering taking action against potentially disabled staff and defending claims by them.
Please contact the team at Synchrony Law if you require any assistance dealing with managing staff with health issues, particularly where those staff might have a disability.
6 December 2021
Written by Andrew Knorpel
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.