No, held the EAT in Parnaby v Leicester City Council.

The Claimant was impaired by depression caused by work-related stress. The Claimant could show that his mental impairment had a substantial adverse impact on his normal day to day activities. At the time of the putative act of discrimination, his dismissal, the impairment had not however lasted for twelve months. The tribunal held that he was not disabled because he had not met the requirement that the impairment must be long-term. The Claimant appealed.

The tribunal fell into error by assuming that the likely future duration of the impairment and its impacts would be time-limited by the Claimant’s dismissal which removed the source of the impairment. The tribunal should have considered whether the impairment was likely to last twelve months or whether it might recur in the future. It was not open to the tribunal to make an assumption about whether removing the stress would remove the impairment.
Following SCA Packaging v Boyle the statutory test to assess recurrence is a predictive one, to consider whether it could well happen in the future. Could well happen means more probable than not. The tribunal did not take consider this in reaching its decision.

The EAT remitted the case.

This blogpost by Karen Jackson first appeared on Daniel Barnett’s Employment Law Bulletin on 10.9.19.