Long Term - disability
Absence – Long-term sickness – Disability.
Long-term sickness can present many problems for employers not least of which is whether the employee’s medical condition might involve a disability which could give rise to a claim for discrimination if the matter is not handled correctly.
A person has a disability for the purposes of discrimination law if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day to day activities.
In cases of physical disability the condition, effects and prognosis can usually be assessed by the employer based on medical evidence. This is not necessarily the case, however, in regard to mental impairment.
The Employment Appeal Tribunal (EAT) has recently ruled that cases involving workers who claim disability discrimination on account of depression should not have to be assessed only on a strict medical diagnosis but initially on the effect their condition has on their work and other normal day to day activities on a long term basis.
The EAT ruling states “There are indeed sometimes cases where identifying the nature of the impairment from which a claimant may be suffering involves difficult medical questions; and we agree that in many or most such cases it will be easier- and is entirely legitimate- for the tribunal to park that issue and to ask first whether the claimant’s ability to carry out normal day-to-day activities has been adversely affected – one might indeed say “impaired”- on a long-term basis.”
Where does this leave employers? Well if an employee is on long term sick leave suffering from depression, anxiety, stress etc. great care must be taken to assess whether that employee’s condition could be a mental impairment which has a substantial and adverse effect on his ability to carry out work and other normal day-to-day activities on a long term basis. If it is then any action that could be discriminatory must be avoided.
The meaning of impairment is not defined by statute but certain “prescribed conditions” such as some addictions or personality disorders are specifically excluded.
Impairment is to be taken to affect the person’s ability to carry out normal day to day activities only if it affects a statutory list of “capacities” such as, in the case of mental illness, memory or ability to concentrate, learn or understand.
The legislation provides that “where impairment ceases to have a substantial 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 the effect is likely to recur.” The EAT has ruled that “---(an employee) “could, if the medical evidence supported the diagnosis of a condition producing recurrent symptomatic episodes, properly claim to be disabled throughout the period: even if each individual episode were too short for its adverse effects -------- to be regarded as “long-term” -----(provided (the employee) could show that the effects were “likely” to recur) “
A long-term effect is if
(a) it has lasted at least 12 months,
(b) the period for which it lasts is likely to be at least 12 months; or
(c) it is likely to last for the rest of the life of the person effected.
It should be noted that these statutory “factors” are for the purpose of helping to determine if the employee could have a disability within the meaning of discrimination law. They do not necessarily determine what constitutes long-term absence that might give rise to termination of employment.(As to which see the website under “Absence - Long-term sickness”)
With the employee being on long-term sick leave the employer will have received certificates from the GP under the “Fit note” scheme. The GP will have certified either that the employee is “unfit for work” or “may be fit for some work” In addition, the employer may well already have obtained a full report from the GP,
In any event, however, for the purposes of assessing whether the employee’s condition might constitute a disability very specific questions should be put to the GP and, if appropriate, to a specialist consultant.
For example, the GP should be asked about the effect of the employee’s condition on his ability to carry out normal day-to-day activities and also to provide a long-term prognosis covering the factors (a), (b) and (c) above.
In the event of the employee’s condition being likely to constitute a disability the medical evidence should also indicate any adjustments that could be made by the employer to enable the employee to return to work.
Armed with all the medical and other evidence the employer should then take appropriate professional advice before embarking on any action that might be detrimental to the employee and could constitute disability discrimination.
All PBS information sheets are designed to provide the detail you need to implement best business and employment practices. They are not a detailed commentary on the current law and where advice is needed in a specific case you should contact PBS for expert consultation.