The claimant brought a claim based upon disability discrimination due to a lack of reasonable adjustments being made in her job within the Postal Service, as well as harassment.  The issue in this preliminary hearing was whether the claimant’s condition met the definition given to a disability.

Section 6 of the Equality Act 2010 (the equivalent is Section 1 of the Disability Discrimination Act 1995 in Northern Ireland) requires the physical or mental impairment to have a ‘substantial’ and ‘long-term adverse effect’ on the individual carrying out day-to-day activities.  The claimant had suffered back pain that was first noted in October 2017 but that it had been assisted with preventative measures as well as physiotherapy.   The respondent accepted that the back pain was an impairment but argued against it being substantial or long-term.

In terms of the requirements for a disability being long-term, Schedule 1, Part 1 of the Equality Act 2010 (Schedule 1, Part 2 of the Disability Discrimination Act 1995 in NI) states:

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.

Therefore, the issue for the Tribunal was whether the back pain suffered by the claimant met this definition.

Judge Jones outlined that at no point was any medical professional or occupational health ever asked if the condition would last longer for 12 months.  As a result, it was for the Tribunal to decide whether the claimant was disabled at the time of the alleged unlawful conduct.  There were two pertinent times, September 2018 when the claimant alleged there was a failure to make reasonable adjustments and March 2019 when again there was an alleged failure to make reasonable adjustments as well as harassment.   In examining the medical evidence, the Tribunal found that there were many re-referrals to physiotherapy regarding the back problem.  There were two significant episodes, one in the Summer of 2018 and another in January 2019.  As a result, the Tribunal found that the claimant was a disabled person in line with the statutory definition but not until January 2019 when there was the second significant episode.  This meant that the second alleged unlawful action could then progress to a full hearing.

Practical Lessons

This case sets out the Tribunal’s approach to determining whether an individual is classified as disabled for the purposes of any claim.   The statutory definition provides the guidance and the Tribunal made it clear that they had to make a determination in light of the medical evidence available but noted that the medical professionals had not been asked whether the impairment would have lasted 12 months or longer.  A lesson to take from this case is that when a report is being compiled by occupational health or other medical practitioners for the purposes of determining reasonable adjustments it would be beneficial to ask questions in line with the statutory guidance as seen under the Disability Discrimination Act 1995 (and replicated in the Equality Act 2010 for England and Wales).
https://www.gov.uk/employment-tribunal-decisions/miss-a-ford-v-royal-mail-group-ltd-1801927-2019