Was an employee with ‘golfer’s elbow’ and painful arc syndrome able to establish that her impairment was long-term at the time she was allegedly discriminated against?
No, held the Employment Appeal Tribunal (EAT) in Mir v IQVIA Limited.
Background
Mrs Mir was employed as a medical editor by IQVIA (the employer) from 21 October 2019. She was dismissed on 20 March 2020 (during her probationary period) because the employer said her performance had not met the required standards.
Mrs Mir claimed she was disabled during the period January to March 2020. She submitted an Employment Tribunal (ET) claim for discrimination arising from disability, failure to make reasonable adjustments and victimisation.
First, Mrs Mir needed to prove that she was disabled during the relevant time, which was January to March 2020. A preliminary hearing was listed to decide this point. Mrs Mir suffered from medial epicondylitis (‘golfer’s elbow’) and painful arc syndrome (pain in the shoulder).
The ET found that Mrs Mir suffered an arm and shoulder injury in December 2019 which had a substantial adverse effect on her day-to-day activities and was still having such effect in March 2020.
However, the ET also found that the pain in Mrs Mir’s arm had gone or significantly diminished by the time of her dismissal. It had not been proven that as at March 2020 (the time when discrimination was complained of) that the impairment was likely to last 12 months. Therefore, the ET decided that Mrs Mir was not disabled for the purposes of the Equality Act and her claims were dismissed.
Mrs Mir appealed on three grounds. Two of the grounds are relevant here:
- The ET failed to consider whether the relevant effect of the impairment was likely to recur (meaning it would be treated as long-term).
- The ET failed to consider whether, but for the measures taken by Mrs Mir, the impairment would have continued to have a substantial adverse effect on her.
The Law
Disability has a wide meaning under the Equality Act. Section 6(1) states that:
“A person (P) has a disability if –
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”
The appeal dealt with the question of whether the impairment was long term.
Paragraph 2, Schedule 1 of the Act states:
“(1) The effect of an impairment is long-term if—
(a) it has lasted for at least 12 months,
(b) it is likely to last for at least 12 months, or
(c) it is likely to last for the rest of the life of the person affected.
(2) If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur...”
Paragraph 5 deals with the effect of medical treatment and it says as follows:
“(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if—
(a) measures are being taken to treat or correct it, and
(b) but for that, it would be likely to have that effect.
(2) ‘Measures’ includes, in particular, medical treatment and the use of a prosthesis or other aid...”
It is for the claimant in any case to prove that they are disabled under the Equality Act. Often a claimant will use medical evidence to do so (but it is not required). Case law has established that the ET cannot consider subsequent events (following the alleged act of discrimination) when deciding whether effects are likely to last twelve months or likely to recur.
Decision
Ground 1
Mrs Mir sought to argue that even if it was the case that she had not proven her condition was likely to last 12 months, the ET should have found that it was ‘likely to recur’ and therefore meet the definition of a disability. The EAT rejected this ground of appeal as there was no relevant evidence to support it.
Her physiotherapist was asked if the substantial effect was likely to recur in August 2021, to which the answer was ‘Do not Know’. Notwithstanding that the physiotherapist should have been asked about the position in March 2020 (as subsequent events cannot be taken into account), the EAT held that their answer gave no basis for any finding that the impairment was likely to recur in the future.
The EAT also held that there was no evidence presented to the ET that would allow them to conclude that as at March 2020, Mrs Mir’s impairment was likely to recur should it have gone away after March 2020.
Ground 2
Mrs Mir claimed that the ET ought to have considered if but for the physiotherapy sessions she had between January and March 2020 it would be likely that her impairment would have a substantial adverse effect on her ability to carry out normal day-to-day activities.
Although the EAT found it to be of little consequence as the ET had concluded that at March 2020 her impairment was still having a substantial effect, the EAT noted that it may have been relevant when considering if her condition was likely to last longer than twelve months or likely to recur. However, once again there was no evidence allowing the ET to make such a finding on this point.
Although these two issues were not addressed by the ET, the EAT was satisfied that the result would not have been different even if the ET had expressly considered the points raised in Grounds 1 and 2 of the appeal. The appeal was dismissed.
Comment
Emma McFarlane, Trainee Solicitor in our Employment team comments:
"This case sheds light on what factors a tribunal will consider when disability status is not agreed. It is a reminder that not all impairments amount to a disability under the Equality Act and the importance of establishing whether the effect of an impairment is both substantial and long-term at the point the alleged discriminatory act(s) occurred.
"However, employers should always be alert to the possibility that an employee’s health issues may qualify as a disability and be wary of rejecting claims from an employee that they are disabled."
