As a result of an accident at home, the employee in this case was left suffering from concussion and went off sick. Five months after the accident his GP’s view was that he would make a full recovery and he expected some improvement within the following few months. His GP also hoped that there would be no need for any adjustments on his return to work.
The prognosis was, therefore, that he would fully recover within less than 12 months of the accident. The GP set out his prognosis in a medical report in which he also stated that the employee was disabled. However, it was apparent that this view was based on the nature of the employee’s symptoms as of the date of the report rather than based on the likely position over the ensuring 12 month period. Shortly after the date of the initial medical report the employee was dismissed.
As it happened the employee’s recovery was not as speedy as had been anticipated and 11 months after the accident his GP still considered him to be disabled. He brought a claim for disability discrimination, arguing that he was disabled at the time of his dismissal and that he had been unlawfully discriminated against by reason of his disability. An Employment Tribunal had earlier ruled that he was disabled at the time of dismissal and the employer appealed. On appeal, the Employment Appeal Tribunal said that the earlier tribunal had been wrong to conclude that he was disabled as it had failed to apply the legal test set out in the Disability Discrimination Act and to apply it as at the date of the dismissal.
The Disability Discrimination Act has been superseded by the Equality Act. However, the test remains the same, namely a person is disabled 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. An impairment is regarded as being substantial if it has lasted or is likely to last at least 12 months.
The Employment Appeal Tribunal said that the question for the tribunal was whether the employee had established that he was disabled at the time when the alleged discrimination took place, i.e. at the time of his dismissal. It was, therefore, necessary for him to demonstrate that at the time of his dismissal the symptoms he was suffering from were as such as to have a substantial adverse effect on his day-to-day activities and that the likelihood was that they would last at that level for at least 12 months from the date of the accident.
The Employment Appeal Tribunal said that even if he was experiencing a substantial adverse effect on his day-to-day activities at the time of dismissal the GP’s view was that was not going to persist for very much longer and was certainly not going to persist for 12 months or more. Accordingly, it ruled that the employee was not a disabled person when he was dismissed.
The Employment Appeal Tribunal also said that it was for the employee to show that he was disabled and that the tribunal had been wrong to criticise the employer for not making further enquiries of the GP.
Case reference: S G Baker Ltd v Mr Garry Haggart.
Employers should bear in mind that GPs are not always aware of the legal definition of disability and even where they are it will ultimately be for a tribunal, not a GP, to decide whether a person is disabled or not. For this reason legal advice should be obtained where there is doubt as to whether a person is disabled.
Employment Law Essentials UK 