Date of Alleged Discrimination Critical for Determining Impact of Disability
In a recent disability discrimination case, the Court of Appeal held that an employment tribunal should have considered if the adverse effect of a claimant's mental impairment would likely last at least 12 months at the date of the discriminatory acts.
The Court of Appeal further held that the tribunal's failure to do so was not mitigated by the fact that the tribunal had considered the position before and after that date. The tribunal is not entitled to have regard to events occurring after the date of the alleged discrimination to determine whether the effect was likely to last for 12 months.
Disability Under the Equality Act 2010
Under the Equality Act 2010 (EqA), an individual will qualify as 'disabled' if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day to day activities.
The effect of an impairment is 'long-term' if it has, or is likely to last for at least 12 months, or is likely to last for the rest of the affected individual's life.
All Answers Ltd v W and Another
The claimants brought disability discrimination claims against All Answers Ltd, contending that they were subjected to discriminatory acts on 21-22 August 2018. They both alleged that they were suffering from depression and post-traumatic stress disorder. At first instance, an employment tribunal concluded that both claimants were disabled under the EqA. In both cases, the tribunal referred to evidence covering the period after August 2018.
The Employment Appeal Tribunal (EAT) dismissed All Answers Ltd's appeal against this decision, but noted that the tribunal did not focus on whether there was a 'qualifying impairment' on the dates that the discriminatory acts actually occurred. However, it inferred from the tribunal’s reasons that the tribunal had still properly considered the issue.
The EAT held that the tribunal had not erred when considering the evidence arising both before and after the acts of discrimination to decide whether an impairment existed at the time of the discriminatory event. It considered that this was particularly acceptable considering the impairment was stress, an anxiety order and depression, which might not be a disability that presents with evidence every day.
However, the Court of Appeal overturned this finding. It noted that the key question of whether the effect of an impairment has lasted or is likely to last at least 12 months must be assessed by references to the facts and circumstances existing at the time of the alleged discriminatory acts. Therefore the tribunal is not entitled to have regard to events occurring later. The tribunal in this case had failed to adopt this approach and the case was remitted.
What Can We Take Away From This Case?
This case is a helpful reminder that in disability discrimination claims, the test of whether an asserted disability is long term (ie lasting or likely to last for 12 months or more) must be considered with reference to the facts and circumstances existing at the date on which the discriminatory act took place.