The Court of Appeal has held in All Answers Ltd v W and anor that an employment tribunal erred in failing to consider whether the adverse effect of a disability discrimination claimant's mental impairment was likely to last for at least 12 months as at the date of the alleged discriminatory acts.
The claimants, who both contended that they suffered from depression and, in the case of one of them, post-traumatic stress disorder, alleged that they were the subject of discriminatory acts on 21 and 22 August 2018. The tribunal concluded that both claimants satisfied the definition of disability and, in doing so, referred to evidence covering the period after August 2018.
On appeal, the Employment Appeal Tribunal (EAT) agreed with the tribunal. It found that it was legitimate 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 material time. As the alleged impairment was stress, an anxiety disorder and depression, the EAT did not expect every day to offer evidence of disability.
The Court of Appeal allowed the appeal. It referred to the Court of Appeal's decision in McDougall v Richmond Adult Community College where it was held that it should be determined whether an impairment existed at the time of the acts of alleged discrimination. It noted that the key question, following McDougall, is whether, as 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 has to be assessed by reference to the facts and circumstances existing at the date of the alleged discriminatory acts, and the tribunal is not entitled to have regard to events occurring later.
Take note: Following the decision in All Answers it is clear that the long-term effect of a disability must be considered as at the time the acts of the alleged discriminatory acts take place. It will not be open to a tribunal to consider evidence arising after the acts of discrimination to determine whether or not the alleged disability was likely to last for at least 12 months.
