The question can sometimes arise as to whether an employee is disabled. This occurs often when the employee has a condition which is debilitating, but the employer argues that it is not “long-term” (this being a necessary feature of a condition if it is to be classed as a disability).
In this case, the Appeal Tribunal has given judgment as to when an employer should look into the future when working out if a condition is a disability.
The case concerned a lecturer, who caught a student trying to commit suicide and suffered PTSD as a result. The Tribunal accepted there was an impairment, but was it long term?
Most lawyers accept that while there is little in the way of a firm line to cross in what is “long-term”, an employer, and court, is safe to work on 12 months or more. In predicting the future, the impairment will be long-term, if, when assessing the likelihood of it lasting 12 months or more, the answer is “it could well happen”.
So that’s the test. It could well happen.
To put this in perspective, other things that “Could well happen” might be:
- Arsenal winning the FA cup
- A lottery ticket getting three numbers right
- A white Christmas
It does not need to be a certainty to pass the test.
The best advice, therefore, is to not only apply the test of “Could it well happen?”, but to document that this was applied in a file note. Most lawyers, of course, will err on the side of caution and if there is any doubt as to whether a condition will last for 12 months or more, will advise you treat the condition as a disability.
The case can be read in the original HERE. https://www.gov.uk/employment-appeal-tribunal-decisions/mr-p-martin-v-university-of-exeter-ukeat-0092-18-la