Employment Tribunal erred in law when deciding whether the Claimant was disabled

Employment Tribunal was held to have erred in law by focussing on the impact of termination of employment when deciding whether the Claimant was disabled

In the case of Morris v Lauren Richards Ltd [2023], the Employment Appeal Tribunal (EAT) allowed an appeal against an employment tribunal's finding that a Claimant, Miss Morris, was not disabled, finding that the tribunal had not conducted the correct approach when determining whether the ‘effect’ of the claimant's mental impairment was likely to last for at least 12 months.

The Equality Act 2010 sets out the legal definition of disability, which is where an individual has a physical or mental impairment, and the impairment has a substantial (i.e., more than minor or trivial) and long-term adverse effect on their ability to carry out normal day-to-day activities.

The effect of an impairment will be long-term if, at the time of the alleged discriminatory act, it has lasted at least 12 months, is likely to last for at least 12 months or is likely to last for the rest of the individual's life.

The employment tribunal found that Miss Morris had an impairment (anxiety) which had a substantial effect on her ability to carry out normal day-to-day activities. However, at the relevant time, she had experienced the effect of anxiety for only 3.5 months. She did not have a significant history of mental health issues, with her anxiety only starting when she experienced a loss of confidence and being overwhelmed at work. The crucial question for the tribunal was, therefore, whether the effect of her anxiety was likely to last for at least 12 months as required by law. The tribunal concluded that it was not, and that she was therefore not disabled. In reaching its conclusion, the tribunal focused on the fact that Miss Morris’ anxiety was centred on workplace issues and was unlikely to persist following the termination of her employment.

Miss Morris, however, appealed and argued that the tribunal had erred in law and was mistaken by considering events (i.e. her dismissal) that occurred after the relevant acts of alleged discrimination. The EAT agreed with her. The tribunal had incorrectly placed material weight on the fact the workplace was causing her anxiety and that it was unlikely to persist after termination of her employment. The EAT noted that the threshold for likelihood is low (whether something "could well happen"). The tribunal should have focused on whether the effects of her anxiety could well have continued for another 8.5 months, despite the termination of her employment and lack of medical evidence.

The question of long-term effect was sent back to the employment tribunal for reconsideration.

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