The Employment Appeal Tribunal (EAT) has held in the case of Morris v Lauren Richards (2023) that the Employment Tribunal (ET) erred in law on the issue of the "could well happen" test as to whether an impairment is likely to last at least 12 months
The "Could Well Happen" Test
To be classified as disabled for the purposes of the Equality Act (EA) 2010, a person must have a physical / mental impairment that has a substantial adverse impact on their normal daily activities on a long term basis.
To constitute 'long term' under Schedule 1 paragraph 2 of the EA 2010, the impairment must either have already lasted for at least 1 year or be likely to last for at least 1 year or for the rest of the individuals life. Where 1 year has not yet elapsed, the test that needs to be satisfied in terms of whether the impairment is likely to last at least 1 year or be lifelong is whether it "could well happen" (Nissa v Waverley Education Foundation Ltd (2019)) - a relatively low threshold
In this particular case, the Claimant was dismissed post return to work from sickness absence. Whilst she was unable to bring a claim for unfair dismissal on account of the fact that she had less than 2 years service, she did commence tribunal proceedings for disability discrimination, alleging that an excessive workload had undermined her confidence, thereby causing her work related anxiety.
Employment Tribunal
At a preliminary hearing (PH) in the Employment Tribunal (ET), the Claimant's work related anxiety was held not to constitute a disability. Applying the “could well happen” test, the Employment Judge determined that the Claimant's impairment was not long term.
The Judge held that: "The evidence did not suggest that the condition was likely to last 12 months, applying the test of whether this was something that “could well happen”. There was nothing to suggest that the Claimant’s condition at this time was severe or was for some other reason likely to persist and become long-term. The cause of the Claimant’s anxiety was centred on her issues with her workplace and the demands of her job, and her anxiety had at the relevant time lasted for a few months. There was nothing to suggest that her anxiety was likely to persist once she left the respondent and its work environment."
The Judge added: "The Claimant was not someone with a pre-existing history of mental-health issues that indicated a particular vulnerability. On the contrary, the only relevant medical history indicated that when the claimant had previously experienced distressful life event (her premature menopause diagnosis) she had recovered well with a short period of counselling. For that reason I considered there was nothing to indicate her condition in 2019 was likely to take a different course or that her anxiety was likely to persist or become a long-term or recurrent condition."
Appeal To EAT
The Claimant appealed to the EAT, arguing that the ET had erred in law on the issue of whether her impairment met the “could well happen” test re whether it was likely to last at least 12 months, by including events subsequent to the discriminatory acts in their assessment, when stating: "There was nothing to suggest that her anxiety was likely to persist once she left the respondent and its work environment."
The EAT upheld the appeal, holding that the ET had erred in law. It ruled that the ET should have confined its assessment as to whether the impairment was likely to last a minimum of 12 months (in accordance with the "could well happen" test) to the period during which the alleged discriminatory acts occurred. Hence, the ET should not have factored in subsequent events , such as the Claimant's dismissal.
The EAT referred the case back to the ET for a re-hearing.
Implications
The decision by the EAT to uphold the appeal highlights that the threshold re the "could well happen" test is a low one, that it is assessed in relation to the point at which alleged discriminatory acts took place, and that subsequent events are not included in that assessment. Employers should be mindful of this when assessing whether employees medical conditions constitute a disability, whether reasonable adjustments need to be made, and what the potential risks of a claim for disability discrimination are.
