The correct date for assessing disability

The Employment Appeal Tribunal in Mr Hafeez Ahmed v Department for Work and Pensions (June 2024) serves as an important reminder that the correct date for assessing disability must be at the date of the alleged discriminatory acts.

Mr. Ahmed brought two claims in the Employment Tribunal, stemming from a period of absence from work in September 2020. This absence was due to health conditions (Paroxysmal nocturnal hemoglobinuri (PNH) and depression) which led to disciplinary proceedings against him. Mr. Ahmed then complained of various discriminatory acts, including acts which occurred in 2020, 2021 and 2022. The employer accepted that Mr. Ahmed was disabled by reason of PNH but not depression at the date of the alleged discriminatory act(s). A preliminary hearing was held on the issue of Mr. Ahmed’s depression, and the Tribunal found that Mr. Ahmed was not disabled by reason of depression during the ‘relevant period’. This ‘relevant period’ was held to be a three-day window in September 2020. 

On appeal, the Employment Appeal Tribunal held that the three day window used to assess whether the Claimant was disabled by reason of depression was far too narrow a window to determine the Claimant’s disability at each of the alleged discriminatory acts (which occurred over three years).  It was held to be the correct window for one of Mr. Ahmed’s claims, which took place within the ‘relevant period’, but the incorrect window for the acts that occurred before or after September 2020 and throughout 2021 or 2022.

Practical tip

When employees are alleging discrimination by reason of disability, ensure that disability is assessed at every point where discriminatory acts are alleged, not just during one artificially or otherwise limited period. If a restricted period is used, the scope can be considered too narrow and risk the Tribunal making judgment against you.

How Moore Barlow can help

Addressing disciplinary and grievance issues is inevitably time consuming and often a significant drain on resources. Ensuring that you have the right procedures in place is essential. There are strict guidelines that you must follow including: establishing the principles, setting the rules, handling disciplinary issues, the ACAS Code of Practice and managing the disciplinary hearing. Contact one of our Employment relationship lawyers if you need any assistance or advice.