CA on when long-term effect of disability is assessed
Friday 7th May 2021
The CA in All Answers Ltd v W & R has held that the long-term effect of a disability must be considered at the date of the alleged discrimination.
W and R brought several claims which included allegations of disability discrimination arising out of incidents which occurred in August 2018. A preliminary hearing was held to determine whether they were disabled. W and R both suffered from depression, with R also suffering from PTSD. They were required to demonstrate a mental impairment which had a substantial and long-term adverse effect on their ability to carry out day-to-day activities. To satisfy the definition, the impairment must have lasted, or be likely to last, at least 12 months, which the ET accepted. AA Ltd appealed.
The EAT noted that the CA decision in McDougall v Richmond Adult Community College was authority for AA Ltd’s arguments that the ET should have determined whether the impairment existed at the time of the alleged discriminatory acts and should not have considered any evidence extending beyond that period. While the EAT observed that the ET did not refer to McDougall or focus on whether there was a qualifying impairment in August 2018, it concluded from the ET’s reasons that the issue had been properly considered. Given the nature of the impairments, the EAT did not expect every day to offer evidence of disability and therefore felt it was legitimate to examine evidence arising before and after the acts of discrimination to shed light on the existence of the impairment at the relevant time.
The CA disagreed. The key question, following McDougall, is whether at the time of the alleged discriminatory acts, the effect of an impairment had lasted or was likely to last at least 12 months. This should be answered only by reference to the facts and circumstances as they existed at the date of the alleged discriminatory acts. The CA held that the ET had failed to ask this question and that the use of the present tense throughout the decision indicated the ET had considered the issue as at the date of the hearing.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.