The recent Employment Appeal Tribunal (EAT) decision in the case of Morris v Lauren Richards Ltd 2023 gives further guidance on the matter.
For a health issue to be a disability under the EA 2010 it must fall within the definition of disability under section 6 of EA 2010 namely: -
(1) A person (P) has a disability if—
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.
Where an employee has a disability under the meaning of Section 6 EA 2010 and is dismissed by the employer, the employee does not need to have two years plus service to pursue an action before employment tribunal and if successful compensation in discrimination claims is uncapped thus employers must ensure that where an employee has a disability falling within the meaning of Section 6 EA 2010 that they support their employee which may require reasonable adjustments to the employee's role to accommodate their disability following taking medical guidance.
What were the facts of Morris v Lauren Richards Ltd 2023?
The employee, Stephanie Morris, (SM) in late May 2019 started to suffer from anxiety, giving rise to a loss of confidence and feeling overwhelmed with work and these health issues continued to the date of dismissal on 11th September 2019.
What claim was made against the employer?
(SM) bought a disability discrimination claim in the Employment Tribunal (ET) based upon her anxiety that was centred round her job.
What did the (ET) decide?
(ET) accepted that (SM)’s anxiety was substantial and had an impact on her carrying out normal day to day activities but did not accept that it was long term ie likely to last more than 12 months, as it only had started few months before the termination of employment on 11th September 2019 or recur after termination as the anxiety was related to her job that ended on 11th September and thus was not a disability under the EA 2010. The (ET) considered that there was no pre-existing medical history of mental health issues that highlighted any vulnerability, as prior to current matters the only relevant medical history indicated that when (SM) had previously experienced a distressful life event, ie premature menopause diagnosis, she had recovered well with a short period of counselling. (SM) appealed to (EAT).
What did the (EAT) decide?
The (EAT) decided that the question of the likelihood that the impairment would last more than 12 months or recur had to be addressed before the date of dismissal and highlighted that the threshold of whether the impairment was likely to last 12 months was "a low one" and that the (ET) should have asked itself whether "the substantial adverse effect was persisting, when it would have been likely to have ceased and what would have made it cease." As the (EAT) did not have the evidence before it to answer these questions, the case was remitted back to the (ET) to address matters on the question of long-term effect.
In terms of determining whether or not a particular effect is likely to be persist, the (EAT) highlighted that there is no rule of law that it is necessary to have medical evidence in any given case, as in this case there was an absence of medical evidence on the question of the long term effect of the anxiety and it is a matter of factual assessment for the employment tribunal to decide on the evidence before it.
What does the decision mean for employers?
Despite the (EAT) findings, where employees are suffering from health issues it is always prudent for the employer to have in place an up-to-date health assessment to determine if the condition is a disability under EA 2010, this is even more essential requirement for mental health matters as in Morgan v Staffordshire University [2002] ICR 475 Tribunal, Lindsay P presiding, observed that "the existence or not of a mental impairment is very much a matter for qualified and informed medical opinion" and it was held in that case the reference to the applicant’s GP notes was insufficient to establish that she was suffering from a disabling depression.".
The article is for informational and educational purposes only and should not be relied upon as legal advice. If you require any further assistance, please do not hesitate to contact our HR/Legal advice line team at 0116 274 9193.
