When do you confirm disability status?
In the recent case of All Answers Ltd v W and Another, the Court of Appeal provided clarity on when the disability status of Claimants should be assessed. It held that the long-term effect of an impairment must be considered as at the date of the alleged discriminatory act, and so a tribunal is not entitled to consider events occurring after the alleged discriminatory act.
In order to bring a claim for disability discrimination, the Claimant must meet the definition of ‘disability’ which is set out in Section 6 of the Equality Act 2010 i.e. a physical or mental impairment that has a “substantial” and “long-term” adverse effect on their ability to carry out “normal day-to-day activities”.
The effect of an impairment is ‘long-term’ for this purpose if it has lasted for at least 12 months or it is likely to last for at least 12 months.
In this case, the Claimants alleged that they were subject to disability discrimination on 21st and 22nd August 2018. The Respondent accepted that the Claimants had a disability as at those dates, but disputed the suggestion that the substantial impact of their impairments had a long term adverse effect lasting for 12 months. The Employment Tribunal held that both Claimants met the definition of disability, referring to evidence covering the period after August 2018.
The Respondent appealed to the Employment Appeal Tribunal (EAT). The appeal was dismissed; the EAT did not accept that it was illegitimate to examine evidence arising before and after the acts of alleged discrimination in order to determine whether it shed light on the existence of the impairment at the material time.
The Respondent then appealed to the Court of Appeal (CA). The CA allowed the appeal, holding that the key question is whether the effect of an impairment had lasted or was likely to last for at least 12 months at the time of the alleged discriminatory acts. It held that it was not clear whether the Tribunal assessed the facts and circumstances as at the date of the alleged discriminatory acts, as it should have done.
This decision confirms the importance of considering all the elements of the disability status test, and that it is crucial to consider the question of whether an impairment had lasted or was likely to last at least 12 months at the date of the discriminatory acts. This assessment must exclude any reference to events occurring after the date of the alleged discrimination.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.