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Can temporary incapacity be a disability?

January 23, 2017 at 9:00 AM

It is well established law that for someone to be considered as disabled under the Equality Act 2010 their physical or mental impairment must have lasted or be likely to last 12 months. However, it is not always possible to identify how long an impairment might last, even though it is clear it will only be temporary in nature.

In the Spanish case of Daouidi v Bootes Plus SL the Europena Court of Justice (ECJ) considered exactly this point. Mr Daouidi had been dismissed from his job as a kitchen assistant for poor performance following a fall at work that had resulted in a dislocated elbow.

Elbow X-Ray

He brought a claim, which included disability discrimination - his elbow was in plaster and prognosis uncertain. The Spanish Court accepted he was dismissed because of his incapacity but asked the ECJ for guidance on whether the temporary incapacity could amount to a disability.

Although the ECJ found that a temporary incapacity for an indeterminate time does not in itself mean it is long term, it may be possible to establish a potential disability where there is no clear short-term prognosis. Whether or not that was the case would turn on the evidence available at the time.

This means that what might appear to be a fairly straightforward injury such as broken or dislocated bone carries the risk of a finding of a disability if the recovery is significantly prolonged. Depending on the circumstances employers may want to consider seeking medical advice before dismissing.

About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

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