The Court of Appeal has ruled that the long-term effect of an impairment must be considered as at the date of the alleged discriminatory act and a tribunal is not entitled to consider events occurring after the alleged discriminatory act.
The facts
Under the statutory definition, a person will have a disability if they have a physical or mental impairment which has a substantial and long term adverse effect on their ability to carry out normal day to day activities. To be “long term” the effect of the impairment must have lasted, or be likely to last, for at least 12 months, or be likely to last for the rest of the life of the person affected.
Two employees, Mr W and Ms R, brought several claims against their employer, All Answers Ltd, including claims that they had been discriminated against on the grounds of disability. They alleged that their seating positions in the office were changed so that they no longer sat close together and were isolated, and that there was a failure to respond to their concerns about this. Mr W was also subject to an informal warning. These actions, which they alleged took place on 21 and 22 August 2018, were (they claimed) acts of disability discrimination. Mr W and Ms R contended that in August 2018 they were both suffering from depression and, in the case of Ms R, post-traumatic stress disorder, and that these impairments met the definition of “disability”.
At a preliminary hearing, the employment tribunal concluded that both Ms R and Mr W satisfied the definition of disability. In both cases, the tribunal referred to evidence covering the period after August 2018.
All Answers Ltd appealed unsuccessfully to the EAT. The EAT noted that the employment tribunal did not focus, in its judgment, on whether Mr W and Ms R had suffered from a qualifying impairment on 21 and 22 August 2018 (the dates on which the alleged discrimination had taken place), but the EAT inferred from the tribunal’s reasons that it had properly considered this. The EAT did not accept that it was illegitimate for the tribunal to examine evidence arising before and after the acts of discrimination in order to determine whether it shed light on the existence of the impairment at the time the alleged acts of discrimination occurred.
All Answers Ltd appealed to the Court of Appeal. The Court of Appeal allowed the appeal, nothing that the key question is whether, at the time of the alleged discriminatory acts, the effect of an impairment has lasted or is likely to last at least 12 months. This must be assessed by reference to the facts and circumstances existing at the date of the alleged discriminatory acts. The tribunal is not therefore entitled to take into account events occurring later. The Court of Appeal considered that the tribunal had not asked this key question, and its judgment gave the clear impression that the tribunal had considered the issue as at the date of the hearing.
The case was remitted to the employment tribunal to consider whether, as at the date of the alleged discriminatory acts on 20 and 21 August 2018, the substantial adverse effect of Ms R’s and Mr W’s impairments was likely to last at least 12 months.
What does this mean for employers?
This case provides useful clarification that events occurring after an alleged act of disability discrimination will not be relevant in assessing whether an impairment is likely to have a long term adverse impact on an employee.
