Date of alleged discrimination vital when determining impact of disability

The requirement for assessing the ‘long-term’ adverse effect when determining disability status – Lodders employment law specialists examine a recent case.

Failing to assess the correct timing when considering disability status can be costly for employers.

In the recent case of All Answers Ltd v Mr W and Ms R [2021] EWCA Civ 606, the Court of Appeal reaffirmed the importance of timing when determining disability status.

The court confirmed that the assessment of whether an impairment had lasted, or was likely to last at least 12 months, should be made at the date of the alleged discrimination.

Background

The claimants, Mr W and Ms R, alleged that on 21^st and 22^nd August 2018 they were the subject of instances that gave rise to claims for disability discrimination. Both claimants asserted they satisfied the statutory definition of disability at the time of the acts.

A preliminary hearing took place to determine the claimants’ disability status.

The Employment Tribunal (‘ET’) found that both claimants were disabled, within the meaning of section 6 and schedule 1 of the Equality Act 2010.

The respondent, All Answers Ltd, accepted that on 21^st and 22^nd August 2018, both claimants were suffering from mental impairments that had substantial adverse effects on their abilities to carry out day to day activities.

However, All Answers Ltd did not accept the impairments had ‘long term’ effects.

It appealed the tribunal decision in the Employment Appeal Tribunal (‘EAT’) and subsequently to the Court of Appeal.

All Answers Ltd contended that both the ET and the EAT had failed to consider if the impairment had a substantial and long-term adverse effect. That is an effect which, judged at the date of the alleged discriminatory acts, was likely to last for 12 months and, in the case of Ms R, wrongly took into account events occurring after that date.

Judgment

The Court of Appeal considered that the key question in the case was whether or not, at the time of the alleged discriminatory acts, the effect of the impairment was likely to last at least 12 months.

It concluded that this question is, “to be assessed by reference to the facts and circumstances existing at the date of the alleged discriminatory acts”.

It also stated that “the tribunal is not entitled to have regard to events occurring after the date of the alleged discrimination to determine whether the effect did (or did not) last for 12 months”.

It upheld the earlier decision in McDougall v Richmond Adult Community College [2008] EWCA Civ 4, which applied to the question of whether an impairment was likely to recur, and whether the impairment was likely to last at least 12 months.

The Court of Appeal concluded that the tribunal had failed to assess whether the effect of the claimants’ mental impairments, as assessed at 21^st and 22^nd August 2018, were likely to last for at least 12 months.

It held that the EAT was wrong to overlook this error.

What can we take from this case?

This decision reiterates the importance of considering all the elements of the disability status test under s6 and schedule 1 of the Equality Act 2010.

It is also essential to consider the question of whether an impairment had lasted or was likely to last at least 12 months at the date of the discriminatory acts.

Furthermore, it makes clear, when determining if an impairment is ‘long term’ for the purposes of assessing disability status, a tribunal cannot consider events after the date of the alleged discriminatory act.

If you are facing a claim regarding disability status, it is important to look at the date the alleged act took place in order to make an assessment of disability status.

More Information

If you need any advice on disability discrimination or any other employment-related matter, please contact our Employment team for an initial chat.