Employment Law Speed Read – 25/02/19
25th February, 2019
In Nissa v Waverly Education Foundation Limited, the Employment Appeal Tribunal considered the definition of 'disability' under section 6 of the Equality Act 2010.
Mrs Nissa was employed by Waverly Education Foundation Limited from 1 September 2013, most recently as a science teacher.
From December 2015, Mrs Nissa suffered from fibromyalgia – a condition that causes fatigue, muscle stiffness, increased sensitivity to pain and difficulty sleeping.
Mrs Nissa resigned in August 2016 and brought a claim to the Employment Tribunal (ET) alleging that she had suffered disability discrimination. In order to succeed in her claim, Mrs Nissa first had to establish that she was disabled within the meaning of section 6 of the Equality Act 2010 (EqA 2010).
Section 6 EqA 2010 states that a person has a disability if they have a physical or mental impairment, which has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities.
Mrs Nissa alleged that the fibromyalgia, together with mental distress, caused substantial and long-term adverse effects on her ability to carry out her normal day-to-day activities. Although Mrs Nissa’s employer did not dispute that she was suffering from the physical and mental impairments, they did not accept that she was disabled within the meaning of section 6 EqA 2010.
The ET found in favour of the employer and rejected Mrs Nissa’s claim. The ET held that Mrs Nissa was not a disabled person within the meaning of section 6 EqA 2010 as her impairments were neither substantial nor long-term.
When determining whether Mrs Nissa’s impairments were long-term, the ET focussed on her diagnosis and the fact that a Consultant Rheumatologist had expressed hope that her condition would slowly improve. Further, the ET held that although Mrs Nissa’s impairments had some adverse effect, her evidence was too vague and imprecise to demonstrate that the effect was substantial.
Mrs Nissa appealed to the Employment Appeal Tribunal (EAT).
Employment Appeal Tribunal
The EAT found in favour of Mrs Nissa and allowed her appeal. The EAT held that when considering whether Mrs Nissa’s impairments were long-term, the ET had incorrectly focussed on her diagnosis rather than the effects of her impairments. Accordingly, the ET had approached the issue too narrowly.
With regard to whether or not the effect of Mrs Nissa’s impairments were substantial, the EAT highlighted the “relatively low standard” of the term substantial and held that the ET had failed to take into account the relevant evidence. As such, the conclusions of the ET were deemed to be unsafe and the case was remitted to a new Tribunal.
This case emphasises that when determining whether an individual is disabled within the meaning of section 6 EqA 2010, the issue should not be approached too narrowly. Instead, Tribunals should utilise a broader approach and examine the ‘whole picture’.
If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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