In the recent case of Mrs J W v Newport City Council, the Employment Appeal Tribunal (EAT) held that the claimant was disabled under the Equality Act 2010. The claimant was absent from work for 18 months with anxiety, linked to a requirement to attend court as part of her job.
Under the Equality Act 2010, a person is disabled if they suffer from a mental or physical impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
Mrs JW worked as a social worker at Newport City Council within the fostering team. The fostering team is responsible for assessing prospective foster carers. Sometimes these assessments are challenged in the family courts and members of the team attend court. Mrs JW did not carry out these assessments in practice but was asked to attend court on a matter decided by a colleague in June 2016. At this court hearing, she was unable to answer the judge’s questions and was heavily criticised.
In March 2017, her manager retired, and she was told that she would now need to carry out the assessments and attend court. Mrs JW was upset by this and was signed off from work due to stress for 18 months. Towards the end of this period, medical evidence confirmed that she would be able to return to work if the council removed the court work from her role.
The council said that they were unable to remove the court work from her role and dismissed Mrs JW on the grounds of capability.
Mrs JW brought claims of unfair dismissal, failure to make reasonable adjustments, discrimination arising from disability and indirect disability discrimination. The tribunal upheld her unfair dismissal claim, but not her disability discrimination claims, as it held she was not disabled. This was because attending court was held not to be a normal day-to-day activity.
The EAT considered the tribunal findings that Mrs JW’s anxiety at the prospect of attending court meant that she was not fit to return to her job at all unless or until the council removed that requirement. In light of these agreed facts, the EAT held that her impairment had a substantial adverse effect on her ability to carry out normal day-to-day activities and that this was a long-term impairment.
This case is a reminder to employers that reasonable adjustments should always be carefully considered prior to dismissing a disabled or potentially disabled employee. The Equality and Human Rights Commission has a list of examples of reasonable adjustments which includes “allocating some of the disabled worker’s duties to another worker”. It seems that the council in this case had not really engaged with whether they could remove this element of her role, as she had worked for seven years previously, only attending court once.
Source: Lexology
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