REWARD
Impairment, covenant, behaviour
NicolaMullineux, senior employment specialist for Peninsula, reviews the decisions in three cases
Parnaby v Leicester City Council In this case, the employment appeal tribunal (EAT) had to decide if an employer should have factored-in the likelihood of an impairment reoccurring again, when assessing whether it was sufficiently ‘long-term’ to qualify as a disability. Mr Parnaby had been off work on long- term sickness absence on two separate occasions, claiming he was suffering from depression brought on from work-related stress. At the end of his second period of absence, which lasted for seven months, the employee was dismissed for capability reasons. By the time of his dismissal, GP (general practitioner) records outlined that the employee suffered from a “depressive disorder” and that he had been taking prescribed antidepressant medication on an intermittent basis for over a year. The employee raised claims with an employment tribunal (ET) for unfair dismissal and disability discrimination, outlining that his dismissal was the final act in a series of incidents. Although it was accepted that the employee’s depressive disorder could be considered a disability under the Equality Act 2010, a
question was raised as to whether it met the criterion of ‘long-term’. After all, for a condition to fully qualify as a disability it must last, or must be likely to last, for at least twelve months. At a preliminary hearing, the ET accepted that the employee did have an impairment that was the result of work-related stress, and that this met the criteria under the Equality Act 2010 in having a substantial adverse effect on his ability to carry out normal day-to-day activities. Despite this, the ET held that the impairment could not be classed as ‘long- term’. His two periods of absence had not lasted longer than twelve months and, in particular, his workplace difficulties did not seem to affect him when he was not at work. If anything, his condition appeared to have improved following his dismissal, especially as there had been limited communication between the employee and his GP. In forming their decision, the tribunal looked at the position that the employee had held at the time of dismissal, reaching a conclusion that the dismissal could have served to limit or remove his impairment. Therefore, it was not likely to recur.
The employee’s appeal to the EAT was upheld and the case remitted to a new ET for further review. The EAT outlined that the question of whether the employee’s impairment was likely to last for twelve months or more, or likely to recur, should have been considered at the time of the discriminatory acts in question. The discrimination claim was predominantly based on occasions that had occurred prior to the dismissal, meaning the likelihood of his condition recurring should have been considered at these specific times. The ET had erred by assuming that the future impacts of his impairment would be time-limited by his dismissal just because it had served to remove the cause of his stress. In summary, the EAT held that when considering if an impairment is likely to last at least twelve months or will recur, the key question is whether it “could well happen”. The tribunal should not, in their view, have assumed that removing the cause of the stress by dismissing the employee would remove the impairment. Tillman v Egon Zehender Ltd In a landmark ruling, the Supreme Court confirmed that unreasonably wide wording in a post-termination covenant can be removed, and the covenant enforced, if this does not generate any significant change to the overall effect of
...erred by assuming that the future impacts of his impairment would be time-limited...
| Professional in Payroll, Pensions and Reward | February 2020 | Issue 57 32
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