When an Employment Tribunal Judge assesses a disability discrimination claim, the first question they will often need to consider is whether the worker is disabled for the purposes of the Equality Act 2010 (the Equality Act).
Under the Equality Act, a disability is any impairment which has a substantial adverse effect on a worker’s ability to carry out normal day-to-day activities and which has lasted or is expected to last for 12 months or more.
A worker will also need to prove that they were disabled during at the relevant time. The relevant time is when the alleged act(s) of discrimination occurred. If a worker was not disabled according to the Equality Act definition during the relevant period (section 6), their disability discrimination claim will not succeed.
The question of the relevant time was considered by the Employment Appeal Tribunal (‘EAT’) in the case of Ahmed v DWP.
The worker claimed that he had been subjected to disability discrimination. He asserted that his disabilities were paroxysmal nocturnal haemoglobinuria (PNH, a blood disorder) and depression. He had been absent from work from 15 to 25 September 2020, and he claimed this was because of his health conditions. His employer said that this was an unauthorised absence and deducted four days’ pay from 22 to 25 September and subjected him to a disciplinary process. The worker subsequently went on long-term sick leave from October 2021, until he was dismissed in July 2022 by reason of the unauthorised absence in September 2020.
The worker brought various claims of disability discrimination, arising from numerous acts by the employer which occurred in 2020, 2021 and 2022. This included acts which related to the worker’s absence in September 2020, including the employer deducting money from his pay and eventually dismissing him for the unauthorised absence.
The Employment Tribunal considered whether the worker’s depression amounted to a disability for the purposes of the Equality Act, and whether the worker had this disability during the relevant period. The Employment Tribunal stated that the relevant period was 22 to 25 September 2020, the period of absence, and found that the worker was not disabled because of depression during this period.
The worker appealed to the EAT on numerous grounds, including that the original Tribunal had been wrong to conclude that 22 to 25 September 2020 was the relevant period for all of the claims brought. The EAT upheld the appeal on this ground, finding that 22 to 25 September 2020 was not the relevant period for all of the complaints.
The EAT held that September 2020 was the relevant period for the claims that the worker had been treated unfavourably because of the absence in September 2020. This meant that September 2020 was the relevant period for the claim that he had been unlawfully dismissed in July 2022. Even though the dismissal itself occurred much later, the relevant period for this claim was still September 2020 as the worker had been dismissed because of the September 2020 absence, which he stated arose from his disabilities. However, the EAT found that September 2020 was not the relevant period for the other discrimination complaints which were not connected to the unauthorised absence in September 2020.
The decision by the EAT serves as useful guidance for assessing when the relevant period for a disability discrimination claim is, during which workers need to prove they were disabled. It is vital to correctly identify the relevant period that you are relying on if you bring a disability discrimination claim and to be able to adduce relevant evidence to prove this. Ultimately, the worker needs to prove that their disability played a part in the way they were treated or the disadvantage they suffered at the time.
This blog was written by Yavnik Ganguly, Solicitor at didlaw.
