Is a definitive diagnosis critical in establishing whether a claimant is disabled?

Written by: Robin Pickard

This post addresses the implications of relabelling a condition in relation to the test for disability, with a focus on long covid, post-viral and chronic fatigue. This is the second instalment in our series on disability discrimination. Please read our previous post which covers the knowledge requirement and provides an overview of the statutory test for disability.

We have considerable experience and expertise in representing parties in claims for disability discrimination. In these cases, an issue that we encounter is whether a claimant needs to provide a medical diagnosis of their condition to show that they satisfy the relevant requirements under the Equality Act 2010 (“EqA”). There is deceptive simplicity in answering that such a diagnosis is not required – J v DLA Piper UK LLP [2010] ICR 1052 held that it is the effect that the impairment has on an employee’s day-to-day activities which needs to be considered, not the particular diagnosis. Since then, cases have confirmed that attaching the correct diagnostic label to a condition is not a prerequisite for a disability. But are matters always so clearcut?

This post addresses the circumstances in which relabelling a condition is relevant to whether a claimant has a disability. In the final section, we consider this question in relation to the impairments of post-viral fatigue, long covid and ME/CFS.

The Law

Claimants must show that they have a physical or mental impairment to satisfy the test for statutory disability. In this regard, cases which involve depression have considered whether a claimant is required to provide a diagnosis of their putative impairment before the test can be met. The case law draws a distinction between, on the one hand, clinical depression and, on the other, what has been termed an adverse reaction to life events. In J v DLA Piper, Underhill P (as he then was) stated that the Employment Tribunal (“ET”) will often be justified in parking the issue of impairment where there are conflicting medical diagnoses. Instead, the ET can first enquire whether (para 38):

“… the claimant’s ability to carry out normal day-to-day activities has been adversely affected—one might indeed say “impaired”—on a long-term basis. If it finds that it has been, it will in many or most cases follow as a matter of common sense inference that the claimant is suffering from a condition which has produced that adverse effect”.

However, that is not always the case. Kaler v Insights ESC Ltd UKEAT/0051/20 concerned an unrepresented litigant who did not have a firm diagnosis of autism or Asperger’s Syndrome at the time of the ET hearing. The ET stated that they could only regard the condition as self-diagnosed in the absence of medical evidence. The ET stated, at para 69, that:

“We cannot and do not diagnose the claimant with Asperger’s Syndrome. We have considered whether the claimant has or had at the material time a mental impairment sufficient to meet the definition in section 6 EqA, regardless of the label. We had limited contemporaneous medical evidence to assist us on this, or any medical report covering the relevant time.”

This is an instance where a medical diagnosis was relevant – i.e., in determining whether there was a mental or physical impairment at all. Pursuant to Ladd v Marshall, the EAT allowed a psychologist’s report (which post-dated the ET hearing) which diagnosed the claimant as having autism spectrum disorder. The EAT found that this may be relevant to earlier periods where a person claims to have been disabled because “[A]utism is, as the assessment makes clear, a lifelong condition” (see para 24 of the EAT decision). HHJ Barklem concluded, at para 25, that a formal diagnosis of autism/Asperger’s Syndrome would “probably have had an important influence on the hearing”.

Diagnosis may also have a role to play in determining whether a condition is likely to be long-term (i.e., to last for at least 12 months). In Nissa v Waverly Education Foundation Ltd UKEAT/0135/18, the claimant was employed as a science teacher until she resigned on 31 August 2016. In her subsequent claim, she contended that she had suffered disability discrimination. The claimant’s case was that, since December 2015, she had suffered from a physical impairment, ultimately diagnosed as fibromyalgia, together with mental distress.

The ET first asked whether, on the evidence available within the material period (16 December 2015 to 31 August 2016) it could be said that the effects of the claimant’s impairment(s) were likely to last more than 12 months. The ET noted that the claimant’s advisers had not considered her condition to be long-term and that her diagnosis of fibromyalgia was not made until 12 August 2016 (medical opinion also stated that the claimant could ‘slowly improve’ after she left the respondent’s employment). As such the ET concluded that the effects of the claimant’s condition were not likely to have been long-term.

The EAT held that, in determining whether the claimant’s impairments were long-term, the ET had focused on the question of diagnosis rather than the effects of the impairments, which was an unduly narrow approach. The ET should have determined whether the condition could well last for 12 months on a broad view of the available evidence. The EAT stated that (para 25):

“Consistent with the approach laid down by the EAT in Walker, the existence of a diagnosis of fibromyalgia might have been evidentially relevant to the ET’s assessment but the absence of such a diagnosis was not necessarily determinative. In any event, viewed at the relevant time and thus projecting forward, when asking whether it could well happen that the Claimant’s impairments would last for at least 12 months, there was a range of relevant evidence before the ET …”

In Patel v Oldham Metropolitan Borough Council [2010] ICR 280, Slade J put greater emphasis on the need for a diagnosis. She stated that “[I]t will no doubt be necessary in most if not all cases falling within Schedule 1 paragraph 2(1)(b) that a diagnosis will have to be given in order to obtain a prognosis of the likely duration of the effects of an impairment” (para 14).

Taken together, Patel and Nissa show that, while not determinative, diagnoses are not legally irrelevant. One would therefore expect the ET to attach evidential weight to a diagnosis when determining whether an impairment is likely to be long-term.

Is a diagnosis of ME/CFS required where someone presents with symptoms of post-viral fatigue and/or long covid?

We recently attended a Preliminary Hearing which concerned the date at which post-viral fatigue and/or long covid became a statutory disability. The only issue in dispute was whether the condition was likely to be long term. We successfully relied on the NICE Guidelines on ME/CFS such that all parties accepted disability at an earlier point. The 2021 NICE Guidelines on ME/CFS are likely to assist those addressing whether their impairment of post-viral fatigue and/or long covid could well be long-term. The Guidelines state that ME/CFS should be suspected after a person has had all the persistent symptoms for six weeks: debilitating fatigue, post-exertional malaise, unrefreshing sleep, and cognitive difficulties (see 1.2.2). A diagnosis can then be confirmed after three months (see 1.3.2 and 1.4.1). The prognosis of ME/CFS is described in the following terms (1.6.4):

–  … [it] is a fluctuating medical condition that affects everyone differently, in which symptoms and their severity can change over a day, week or longer

– [the condition] varies in long-term outlook from person to person – although a proportion of people recover or have a long period of remission, many will need to adapt to living with ME/CFS

– [ME/CFS] can involve flare-ups and relapses even if symptoms are well managed, so planning for these should be part of the energy management plan.

After the persistent symptoms have been present for three months the condition might well be long-term. The fact the NICE Guidelines on ME/CFS can have applicability in cases of post-viral fatigue and long covid reinforces that the diagnostic label is less important than the relevant symptoms (per J v DLA Piper).

Whilst it is positive that claimants are not required to provide precise diagnoses in all cases, it is an issue that should be monitored closely. As we saw in Kaler, there may be circumstances in which a diagnosis remains important, particularly where the effects of the condition are not obvious. There may also be circumstances in which a diagnosis will be evidentially important to the question of statutory disability, such that legal representatives may wish to consider making an application to amend the claimant’s particulars of claim to reflect a new diagnosis to increase their chances of satisfying the test for statutory disability.

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