Mrs Nissa claimed for disability discrimination and said that her impairment had caused her to suffer substantial and long-term adverse effects in her ability to carry out day-to-day activities. Her employer disputed this.
The tribunal noted that the medical diagnosis of ‘fibromyalgia’ was not made until 12th August 2016 and was subject to a caveat in October that her symptoms might improve now that she was no longer in employment and therefore could not have been likely for the effects to be long-term. If the claimant’s impairment had been long-term, it would be difficult for the tribunal to ascertain whether this was a work related disability.
The Employment Appeal Tribunal highlighted that they had taken the wrong approach and it should consider whether this “it could well happen” and not if it were “likely”. In the SCA Packaging Ltd v Boyle case, the House of Lords, was asked to project forward to ascertain whether impairment is long-term. In Nissa’s case they were focussing on the diagnosis rather than the effects of the impairment, which was too narrow. They should have looked at the broader view of the evidence prior to 31st August 2016 and the reality of risk.
The case was remitted to a different tribunal for reconsideration after it was decided that the “substantial adverse effect” stand failed to take into account relevant evidence from Mrs Nissa’s testimony regarding that her daily chores had become "extremely difficult, painful and exhausting".
You can read more in the EAT’s guidance here: Nissa v Waverly Education Foundation.
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