The Employment Appeal Tribunal (EAT) has provided a helpful reminder to employers (and employment lawyers) of the circumstances in which an employee is deemed to have an ongoing disability in the case of Roofe-Stewart v MacIntyre Care Ltd.
A person has a disability if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
The claimant in this case had a chronic condition that had been quiescent for a significant period. The EAT found that her condition did not have a substantial effect on her ability to carry out day to day activities and she was no longer taking any medication for it.
However, under the Equality Act an impairment is treated as continuing to have a substantial effect on an employee’s ability to carry out day to day activities if the effect is likely to recur. This is a very low threshold – “likely” in this context means “could well happen”. There is also no requirement for the recurrence to last for more than twelve months.
Employers should therefore bear in mind that an employee who has a history of disability could well continue to be protected under the Equality Act even if they are currently well and have been for some time. The judgment in this case also emphasised the need for medical evidence that directly addresses the definition of disability under the Equality Act, including whether the substantial adverse effect is likely to recur, if relevant.
Frances Rollin