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21 June 2012
Employment Appeal Tribunal (EAT)
Slade J, Sir Alistair Graham and Mr D J Jenkins
A defective immune system causing a high susceptibility to infection can be a disability if it substantially affects an employee's ability to carry out day-to-day activities in the long-term or if that effect is likely to recur. Evidence of one three-month period when ability to carry out day-to-day activities was substantially adversely affected was not sufficient to establish that, without medication, that effect would have been ‘long-term' (ie 12-months or more), or that it was likely to recur.
N's job offer was withdrawn in October 2010 when one of her referees referred to a physical impairment which N claimed was a disability, namely ‘Selective IgA', a defect in the immune system. She had had one 3-month period of sickness absence in 2007 but her condition had no substantial adverse effect in October 2010.
The tribunal concluded that, if the effects of medication were disregarded, she would have been more prone to infection, which would have had a substantial adverse effect - despite the Claimant's inability in cross-examination to give instances (other than the 3-months in 2007) of when her condition substantially adversely affected her. It also concluded that the episode in 2007 had a substantial adverse effect which was likely to recur - despite N only having had one such episode during her life.
The EAT disagreed. Apart from the 3-month episode in 2007, N's condition had not substantially adversely affected her ability to carry out day-to-day activities; and there was no evidence that the substantial adverse effects in 2007 were likely to recur.
The case was remitted to a different tribunal for a rehearing.
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