Patel v Oldham Metropolitan Borough Council and another EAT/0225/09

disability discrimination | meaning of disability | concurrent conditions

The Employment Appeal Tribunal (EAT) has considered whether or not a disabled employee with two related impairments that she suffered concurrently but that individually did not last 12 months each qualify for protection under the Disability Discrimination Act 1995.

Mrs Patel was a teacher. She suffered from mild myelitis (inflammation of the spinal cord) between February and December 2005, resulting in three periods of absence from work of 28, 18 and 66 days. By January 2006, Mrs Patel had developed another, medical condition myofacial pain syndrome (painful muscular trigger points), and she was absent from work from 5 October 2006 for 141 days. She was dismissed by reason of incapability on 30 April 2007.

Mrs Patel brought a claim for disability discrimination, which was rejected by the employment tribunal. An individual must have a physical or mental impairment that has a substantial and long-term adverse effect on the person's ability to carry out normal day-to-day activities. Generally, “long term” means has lasted or is likely to last for at least 12 months or for the rest of the life of the person affected. The employment found that, on Mrs Patel’s own evidence, there were two periods when she suffered from a physical impairment that had a substantial adverse effect on her ability to carry out normal day-to-day activities, but each period did not last for 12 months nor could be said to be likely to last for at least 12 months.

The EAT first noted that the grounds on which the appeal proceeded meant that it could not consider whether or not the two impairments should be considered as one. It may be that in another case two closely related sequential impairments (such as myelitis and myofacial pain syndrome) could be regarded as a single impairment and its duration calculated accordingly. However, this appeal should be considered on this basis that Mrs Patel suffered from two different consecutive impairments.

The EAT decided that the effect of an illness or condition likely to develop or which has developed from another illness or condition forms part of the assessment of whether or not the effect of the original impairment is likely to last or has lasted at least 12 months. The employment tribunal erred in failing to consider whether or not Mrs Patel’s secondary myofascial pain syndrome had developed from her myelitis in determining whether or not the duration of the effects of these two different impairments were to be aggregated for the purposes of deciding whether or not they were long-term. The case should be remitted to the tribunal to consider this issue.

Case transcript of Patel v Oldham Metropolitan Borough Council and another (Microsoft Word format, 70K) (on the EAT website)

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