Courts must recognise disability test


The Employment Appeal Tribunal (EAT) has allowed an appeal against a claim of disability discrimination after the Employment Tribunal (ET) failed to recognise whether the claimant’s stress, anxiety and depression in the workplace could consider her disabled.

The EAT found in Fathers v Pets At Home that the ET had erred because it had not addressed the role and importance of medical evidence in determining whether or not the employee was disabled.

Miss Fathers had been employed at the organisation, as an assistant manager but suffered from stress, anxiety and depression in the workplace, for which she was prescribed drugs and received counseling.

To show that she was disabled, Fathers needed to show that she had an impairment thathad  a substaintial long-term adverse effect on her ability to work.

At a pre-hearing review the employment tribunal had to determine the issue whether she had a disability within the meaning of section 6 of the Equality Act 2010 but concluded she did not satisfy this test.

The ET found that, although Fathers did have a disability, and that it was substantial, it was not long-term, because the substantial effects on her normal day-to-day activities had not lasted for more than 12 months.

Fathers appealed on the grounds that the employment tribunal had failed to address the question whether her disability was being controlled by drugs (deduced effects) and whether its effects were likely to recur even if they had ceased to occur (likelihood of recurrence point).

Jo Broadbent, of counsel at Hogan Lovells, said: “The appeal to the EAT focussed on two specific technical legal issues that the tribunal should have addressed but did not. First, the tribunal did not consider whether the effects of the impairment on the claimant’s activities were likely to recur.

“If the effects were likely to recur, the impact of the impairment on the claimant’s normal day-to-day activities should have been regarded as continuing,  in which case she might have been regarded as someone with a disability.

“In addition, where an impairment is being medically treated, the effects of the treatment should be ignored. If the effects of the impairment without the treatment would be substantial, the employee should be treated as satisfying that element of the test for disability. The tribunal did not address what the claimant’s position would have been had she not been taking medication.

“The case is a useful reminder of how technical the approach to whether someone meets the test of disability can be. Even if a condition can be controlled with medication, limiting the effects of the impairment on normal day-to-day activities, an employee may still be regarded as disabled.

“Similarly, the fact that the effects of an impairment are likely to recur, and this is not a particularly high hurdle for an employee to surmount, means that an employee may be able to show that they are disabled, even though their work activities are not in fact adversely effected at a particular point.”