By the time a claim of disability discrimination gets to an employment tribunal hearing it is likely to be clear for exactly how long an employee (or ex employee) has been "a disabled person", but that is not always the case at the time of a dismissal or even when the application to the tribunal is lodged. In these cases the assessment required is whether the condition is "likely" to last 12 months or longer or, if a lapsing condition, likely to recur. That question becomes that bit more complex when the dismissal itself has a positive impact on the employee's health - potentially meaning that, as a matter of fact, by the time of any tribunal hearing the condition could not be said to have lasted 12 months.
That was the case in Parnaby v Leicester City Council where Mr Parnaby was dismissed following a long term absence. He claimed his dismissal and a number of other acts during his absence were disability discrimination. An employment tribunal accepted that he had a mental impairment - a depressive condition caused by work related stress - and that it had a substantive adverse impact on his ability to carry out normal day to day activities. However, the dismissal brought the period of work related stress, and therefore the impairment it caused, to an end. At the time of the dismissal the impairment had not lasted 12 months. On that basis the employment tribunal concluded that the condition had not been long term.
Mr Parnaby appealed and the EAT upheld the appeal. The tribunal finding that the effect of the impairment was not likely to last 12 months or recur was informed by the fact that the Claimant had been dismissed which removed the work related stress causing it. The tribunal should have considered whether it was likely - in other words whether it could well happen - that the effect would last 12 months or recur at the time the relevant decisions were being made. The tribunal should not have taken into account the impact of the alleged discriminatory dismissal in deciding this issue. Given Mr Parnaby's condition was as a result of work related stress then there must be a high chance that if he had not been dismissed the condition would have either lasted 12 months or recurred. The case was remitted to be heard by a different tribunal.
The employment tribunal's initial finding opened the door to unscrupulous employers dismissing employees suffering from an impairment caused by work related stress quickly so as to avoid the possibility of the employee being found to be a disabled person. Clearly that is not the intention of the legislation put in place to protect those with disabilities from discrimination. However, the EAT's judgement doesn't make things any easier for employers. They may now feel that they need to assume that anyone with an impairment which is caused or significantly impacted by work will be found to be "disabled" at a later stage. Of course, even if that is the case, that does not, of itself, prevent dismissal from taking place, but it would mean that consideration would have to be given to reasonable adjustments prior to taking the decision to dismiss.