In assessing whether a person is ‘disabled’ in accordance with the Equality Act 2010 definition, they must be materially affected by their impairment for at least 12 months or otherwise deemed likely to be.
Morris v Lauren Richards 2023 EAT 19 was a claim for disability discrimination where the impairment of ‘anxiety’ was triggered by workplace situations. Morris was dismissed for poor attendance.
The Employment Tribunal held that she could not be considered disabled as her disability had not lasted for 12 months at the date of her dismissal and that once out of the workplace, she would surely recover.
The EAT disagreed with this interpretation and found that the Employment Tribunal (i) could not make this sort of assumption and (ii) should not have looked at events that took place after the relevant event (i.e. after dismissal). To do so, in the present case, would effectively embolden an employer to dismiss in order to prevent the employee accruing 12 months material impairment.
This case places front and centre the need for caution when assessing whether an employee is ‘disabled’.
If in doubt, the safest approach for the employer to take remains to treat the employee as ‘disabled’ and to consider the duty to make reasonable adjustments.