To succeed in a claim of disability discrimination, claimants have to show that the impairment is long term, meaning that it has either lasted or is likely to last at least 12 months. In All Answers Ltd v W and anor, the Court of Appeal held that when deciding how long the impairment might last, tribunals cannot take into account events that occurred after the date of the alleged discrimination.
Basic facts
This case concerned two claimants, referred to as Mr W and Ms R, who lodged proceedings for disability discrimination.
Mr W began to notice symptoms of depression in April 2018 which included a failure to concentrate, self-destructive thoughts and a general inability to cope with life. These symptoms impacted on his day-to-day activities in that he no longer socialised with friends except for contact with Ms R, stopped cooking for himself and generally looking after himself. Ms R’s medical record showed that she had been diagnosed as suffering from severe depression as of September 2018 and had stopped taking care of her personal appearance and stopped socialising except for contact with Mr W and two close family members.
The event which gave rise to their claims of disability discrimination occurred on 21 August 2018, when changes were made to the seating arrangements in the office. As a result, they were no longer seated near each other, making them feel isolated. On the same day, Mr W was given an informal warning. Although they both raised concerns about the changes the following day, their employer allegedly failed to respond to them.
Decisions of tribunal and EAT
The tribunal held that both claimants were disabled in that they both suffered from a long-term mental impairment which had a substantial effect - that is, more than a minor trivial adverse effect - on their ability to carry out day to day activities. The company appealed, arguing that the tribunal had failed to focus on whether the impairments existed in August 2018 and had instead taken other evidence into account.
While accepting that the tribunal did not focus on whether Mr W was suffering from a “qualifying impairment” on 21 and 22 August, the EAT held that it was clear from the tribunal’s reasoning that it decided that he had been. Likewise, although the tribunal had not focused on those dates when deciding whether the effect of the impairment was long term, it had considered the question. As for the issue about whether Ms R’s mental impairment had a substantial adverse impact and whether the effects were long term or likely to recur, the EAT noted that although “more could have been done to explain the reasoning”, it did not warrant remitting the matter back to the tribunal.
The employer appealed to the Court of Appeal.
Decision of Court of Appeal
The Court of Appeal confirmed that in determining whether a mental impairment has a “long term effect”, the question is whether, as at the time of the alleged discriminatory acts, the effect is likely to last at least 12 months. That is to be assessed by reference to the facts and circumstances existing at the date of the alleged discriminatory acts.
Allowing the appeal, the Court of Appeal held that tribunals are not entitled to have regard to events that occurred after the date of the alleged discrimination when deciding whether the effect did (or did not) last for 12 months. To do so would be contrary to the decision of the Court of Appeal in McDougall v Richmond Adult Community College.
In this case, the tribunal had failed to consider whether, as at the date of the alleged discriminatory acts (21 and 22 August 2018), the substantial adverse effect of each claimant’s mental impairment was long term. In other words, that it was likely to last at least 12 months.
The appeal court therefore remitted the issue to the tribunal, taking into account the facts and circumstances that existed on those specific dates.