Key takeaways
Recurring conditions can count as disabilities
Workers must show real impact on daily life each time.
Misconduct may link to a disability
Tribunals need clear evidence of a connection.
You don’t always need formal reports
Tribunals may accept everyday medical evidence.
What is disability discrimination?
Disabled workers are protected against workplace discrimination. A worker is ‘disabled’ if they have a deemed disability (e.g. cancer, blindness) or a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. ‘Long term’ means it has lasted for at least 12 months, or is likely to last for at least 12 months. If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out day-to-day activities, it is to be treated as continuing to have that effect if it is likely to ‘recur’.
The EAT has recently given guidance on recurring impairments, establishing a connection between a disability and misconduct, and the weight tribunals should give to informal medical evidence submitted by a worker.
The case of Connor -v- Chief Constable of South Yorkshire Police
A civilian police service employee, C, was dismissed after he accessed pornography at work. In mitigation for his admitted misconduct, C relied on his recurring depression, which he argued amounted to a disability. After his internal appeal was rejected, C brought disability discrimination claims. One of the key issues at trial was whether C suffered from a long-term disability which could explain his misconduct. In support of his claim to be disabled, C pointed to references in his GP records to “recurrent depression” and a report from a psychologist which said that C’s behaviour “appear[ed]” to be linked to C’s high levels of stress and hopelessness. The employer argued that C had only suffered from depression from the date of his suspension, but no earlier (so that depression could not explain his misconduct).
The employment tribunal dismissed C’s claim, holding that C had not suffered from depression in the period prior to his suspension and, if it was wrong about that, his depression did not amount to a disability because it did not have a substantial adverse effect on C’s day-to-day activities prior to his suspension. The tribunal also held that watching pornography was not something arising from C’s claimed disability and given that C’s dismissal was objectively justified because of the nature of C’s employment. C appealed.
Whilst the EAT identified various errors in the employment tribunal’s assessment of C’s claim, it ultimately held that these errors did not change the overall outcome that C’s dismissal was objectively justified.
Key guidance from the EAT
The EAT gave guidance in relation to three key issues, which will be relevant to the future assessment of disability discrimination claims:
Recurrent impairments: In order to establish that they suffer from a ‘recurrent’ impairment which amounts to a long-term disability, the worker must be able to prove not only that the impairment has recurred, but also that it has caused substantial adverse effects on their day-to-day activities in relation to both the earlier and current occurrences.
Connection between disability and misconduct: A claim for discrimination arising from disability requires the employment tribunal to make an objective factual finding, on the balance of probabilities, of a connection (either directly, indirectly or via a series of links) between the worker’s disability and the ‘something’ that arose from their disability and led to the alleged discrimination. In the absence of any contrary evidence, where a medical practitioner states in a medical record/report that something (in this case C’s accessing of pornography) ‘appears’ to be connected to a worker’s impairment, this is likely to meet the balance of probabilities test and sufficient to establish the connection.
Status of informal medical evidence: Employment tribunals are an informal forum, and obtaining expert evidence prepared specifically for the tribunal can be very expensive, potentially inhibiting claimants’ access to justice. Informal medical evidence (e.g. medical records) created by professionals with medical expertise should be afforded due weight unless there is contrary evidence. Employment tribunals should therefore consider any supporting ‘informal’ medical evidence a claimant relies on and must give substantive reasoning when rejecting that informal medical evidence.
How our employment lawyers can support you
If you are facing a potential disability discrimination claim, or are concerned about compliance with disability legislation, our experienced employment law lawyers can provide invaluable guidance and support. We can help you understand your responsibilities under the Equality Act 2010 and other relevant legislation, help you develop inclusive policies and procedures and provide you with ongoing support.
From addressing complex legal issues, like those highlighted in Connor -v- Chief Constable of South Yorkshire Police, to providing clear and practical advice, our team is committed to achieving the best outcome for you.
