Can temporary incapacity constitute a disability?
Date:
9 January 2017
The definition of disability in the Equality Act requires an impairment to be "long-term". Specifically this means the impairment must have lasted or be likely to last for 12 months. However, it is not always possible to identify how long an impairment may last, even though it is clear it will only be temporary in nature.
In the case of Daouidi v Bootes Plus SL the Spanish Social Court referred exactly this situation to the ECJ. Mr Daouidi had been dismissed from his job as a kitchen assistant for poor performance following a fall at work that had resulted in a dislocated elbow. At the time Mr Daouidi brought a claim, which included a disability discrimination claim, his elbow was still in plaster and his prognosis uncertain. The Spanish Court accepted that the reason for the dismissal was Mr Daouidi's incapacity but sought guidance from the ECJ on whether the temporary incapacity could amount to a disability.
Although the ECJ found that temporary incapacity for an indeterminate time does not of itself mean the incapacity is long term, it may be possible to bring evidence to show that such an incapacity is long term. Such evidence could include that, at the time of the alleged discriminatory act, the impairment is not one that has a short term prognosis. Whether or not that was the case would turn on the objective evidence available and was for national courts to decide.
This does mean that what might appear to be fairly straightforward injuries - such as broken or dislocated bones - carry with them a risk of a finding of disability if the recovery is significantly prolonged. Depending on the circumstances employers may want to consider seeking medical advice before dismissing.
