Disabilityby Kate Russell
Meaning of ‘long-term effects’
For the purpose of deciding whether a person is disabled, a long-term effect of an impairment is one:
- Which has lasted at least 12 months
- Where the total period for which it lasts, from the time of the first onset, is likely to be at least 12 months
- Which is likely to last for the rest of the life of the person affected
- Where the effects fluctuate or recur from time to time
The likelihood of occurrence of a disability must be assessed at the date of the alleged act of discrimination. The difficulty for employers, particularly where an employee is unwell with mental health issues, is in trying to establish in the earlier stages whether the effect will be long term.
In Daouidi v Bootes Plus SL the European Court of Justice has provided some guidance.
Mr Daoudi dislocated his elbow in an accident at work. He could not give a date for his return to work and was dismissed six weeks after the accident. Mr Daoudi submitted a claim for disability discrimination which was heard by the Spanish national court six months after the accident. At that point he was still wearing a plaster cast on his arm and there was no certainty about the future medical position.
The Court accepted that evidence indicated the real reason for his dismissal was his temporary incapacity for work. It referred the question to the European Court whether, in circumstances such as these, Mr Daoudi could be classified as a disabled for the purposes of the Equal Treatment Directive taking into account that the duration of his impairment was uncertain.
The ECJ confirmed that the concept of ‘disability’ within the meaning of the Equal Treatment Directive means a limitation resulting from a ‘long-term’ physical, mental or psychological impairment which hinders the participation of the person concerned in professional life on an equal basis with other workers.
The Court added that the fact that a person finds himself in a situation of temporary incapacity for work, for an indeterminate amount of time, does not mean in itself that the impairment is ‘long-term’. However, the evidence that may make it possible to find that such a limitation is ‘long-term’ includes the fact that, at the time of the allegedly discriminatory act, the incapacity is not one that has a short-term prognosis or that that incapacity is likely to be significantly prolonged before recovery. That decision must be based on all of the objective evidence available, including documentation relating to the worker’s current medical situation.
The Daoudi decision makes it clear that it is for the national court to take into account the medical evidence available in deciding whether at that point the condition is likely to be long term. The fact that there was no clear prognosis and that incapacity seemed likely to be prolonged was relevant. The decision should be based on all the information available.
Recurring or fluctuating effects
The effects of an impairment don’t have to be active all the time for the impairment to qualify as a disability. If the impairment has had a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, but that effect stops or is not always apparent, the substantial effect is regarded as continuing if it is likely to recur. (In deciding whether a person has had a disability in the past, the question is whether a substantial adverse effect has in fact recurred.) Conditions with effects which recur only sporadically or for short periods can still qualify as impairments for the purposes of the act, in respect of the meaning of ‘long-term’.
The type of conditions with effects which can recur, or where effects can be sporadic, include rheumatoid arthritis, Ménières disease and epilepsy, as well as mental health conditions, such as schizophrenia, bipolar affective disorder and certain types of depression. (The regulations specifically exclude hay fever, except where it aggravates the effects of an existing condition.) These are only examples and the above is not intended to be an exhaustive list.
Some impairments with recurring or fluctuating effects may be less obvious in their impact on the individual concerned. They will still be considered to be impairments.
If medical or other treatment is likely to permanently cure a condition and therefore remove the impairment, so that recurrence of its effects would then be unlikely even if there were no further treatment, consider this when looking at the likelihood of recurrence of those effects. However, if the treatment simply delays or prevents a recurrence, and a recurrence would be likely if the treatment stopped, as is the case with most medication, then the treatment is to be ignored and the effect is to be regarded as likely to recur.
S was a police officer. She claimed two colleagues had bullied her. On her return to work following a period of sick leave, she was placed on recuperative duties in a different team. She asked not to work alongside the colleagues involved but their shift patterns sometimes overlapped.
She complained of disability discrimination because her employers had failed to make reasonable adjustments to her shift patterns between July and October 2002. It was accepted that she had suffered from a recognised psychiatric condition from January 2001 to mid-2002. S argued unsuccessfully that she was still disabled beyond that point because she had a recurring condition.
The EAT concluded the question was not whether the illness itself was likely to recur, but whether the substantial adverse effect was likely to recur. Had there at some stage been an impairment which had a substantial adverse effect on the applicant’s ability to carry out normal daily activities? If so, had the impairment ceased to have that effect, and when? Lastly it should consider what the adverse effect was, and whether it was likely to recur. The court concluded that S did not have a recurring condition.
Assessing whether a past disability was long-term
A person who has had a disability in the past is protected from some forms of discrimination, even if he has since recovered or the effects have become less than substantial. In deciding whether a past condition was a disability, its effects count as long-term if they lasted 12 months or more after the first occurrence, or if a recurrence happened or continued until more than 12 months after the first occurrence.