Case update (3):  Disability discrimination – is it ‘long-term’?

Summary: Can a Tribunal consider events after the date of the discriminatory act when deciding whether an employee’s condition is ‘long-term’ for the purposes of disability status?

No, held the Court of Appeal in All Answers Ltd v W and Another, available here.

Background:  There are in essence four aspects to the test of whether someone is disabled under the Equality Act 2010:

• Does the individual have a physical or mental impairment?
• Does the impairment have an adverse effect on their ability to carry out normal day-to-day activities?
• Is that effect substantial (‘more than minor or trivial’)?
• Is that effect long-term? (An impairment will have a long-term effect if it has lasted 12 months; it is likely to last for 12 months; or it is likely to last for the rest of the life of the person affected).

Facts: The employees in this case both suffered from depression and of one of them also from post-traumatic stress disorder.  They both alleged they were the subject of discriminatory acts on 21 and 22 August 2018 when their seating positions in the office where they worked were changed so that they were no longer seated close to each other, which meant they felt isolated.

The employees brought a Tribunal claim for disability discrimination.

Earlier decisions

The Tribunal and EAT decided that the employees were disabled.  However, in doing so they referred to evidence covering the period after August 2018 to help support the decision that the adverse effect on their condition was ‘long-term’.

The employer appealed.

Court of Appeal decision

The Court of Appeal upheld the appeal.  It confirmed that the key question when assessing whether an adverse effect is long-term is if it had lasted, or was likely to last, for at least 12 months at the time of the alleged discriminatory act. This has to be assessed by reference to the facts and circumstances existing at the date of the alleged discriminatory act, and events occurring later are irrelevant.  The Tribunal should not have taken into account any circumstances after the alleged acts of discrimination on 21 and 22 August 2018.

Implications:  Whether the adverse effect of an employee’s condition is ‘long-term’ must be considered at the time the alleged discriminatory act takes place.   Any facts arising after each act of discrimination is not relevant to that particular act.  Employers or their medical advisers should consider all parts of the test for disability (including whether the impairment has, or is likely to, last twelve months) at the time of each alleged discriminatory act.  This is because whether the impairment meets the definition of disability can change over time. Therefore just because an employee is considered disabled at the time of one discriminatory act, it does not mean that they will be at the time of another.