Siobhan Murphy
Posted on 22 Jun 2021

Can an Employment Tribunal consider events that occurred after the date of a discriminatory act when determining if someone has a disability?

All Answers Ltd v (1) Mr W and (2) Ms R [2021] EWCA Civ 606

The Claimants both worked for the Respondent. The first Claimant, Mr W, brought claims for unfair dismissal and discrimination on grounds of disability, sex, and sexual orientation. The second Claimant, Ms R, brought claims for unfair dismissal and discrimination on the grounds of disability, age, race, and sex.

Both Claimants contended that they were suffering from depression and, in the case of Ms R, post-traumatic stress disorder, in August 2018. They claimed that their seating positions in the office where they worked were changed on 21 August 2018 so that they were no longer seated close to each other and were isolated. The next day, they complained about the change and subsequently contended that there was a failure to respond to their concerns. Separately, Mr W was the subject of an informal warning issued on 21 August 2018.

The Claimants claimed that the change in the seating arrangements amounted to discrimination contrary to the Equality Act 2010. Mr W also claimed that the giving of an informal warning constituted disability discrimination.

The Employment Tribunal (ET) listed the claims for a Preliminary Hearing to determine whether the Claimants were disabled within the meaning of the Equality Act 2010. By way of background, a person has a disability within the meaning of the Act if he or she:

  1. has a physical or mental impairment which has:
    1. a substantial; and
    2. long-term adverse effect on that person’s ability to carry out day-to-day activities.

What was the decision of the ET?

Mr W submitted various medical notes dated between 13 September 2018 and 25 January 2019. He asserted that he began to notice symptoms of depression and anxiety in April 2018 and that those symptoms included a failure to concentrate, self-destructive thoughts, lack of motivation, tiredness, and inability to sleep, and a general inability to cope with life. The ET concluded that it was satisfied that Mr W had been disabled since April 2018 and remained so at the date of the Preliminary Hearing.

The ET then turned to Ms R and noted that there were no relevant medical records until 11 September 2018, when she was suspended from work. However, it again concluded that "Ms [R] suffers from a mental impairment... It is clearly long term and in my view has a substantial, ie more than minor or trivial, adverse effect on her day to day activities".

The Respondent appealed to the Employment Appeal Tribunal (EAT).

What did the EAT decide?

The EAT noted that the ET did not focus on whether there was a "qualifying impairment" in August 2018. It was accepted that the ET had also not focussed on the date of the relevant acts when deciding whether the effect of the impairment was long term, i.e. was likely as at that date to last for 12 months. Nonetheless, the EAT seemed to infer that the ET had, at the very least, considered that question and held there was no purpose to be served by remitting the matter back to the ET. The appeal was therefore dismissed and the Respondent appealed to the Court of Appeal.

What did the Court of Appeal decide?

The Court of Appeal noted that the effect of the impairment had to be long-term (that is, likely to last for 12 months or, if the impairment ceases to have a substantial adverse effect, that the effect is likely to recur). It was accepted by the Respondent that each Claimant had a mental impairment which had a substantial adverse effect on that Claimant’s ability to carry out day-to-day activities. The key question was whether, at the time of the alleged discriminatory acts in August 2018, the impairment had a long-term substantial adverse effect that was likely to last at least 12 months. This question could only be assessed by reference to the facts and circumstances existing at the date of the alleged discriminatory acts.

The Court of Appeal found that the ET was not entitled to have regard to events occurring after the date of the alleged discrimination to determine whether the effect did (or did not) last for 12 months. Against that background, the central issue for the Court of Appeal was whether the ET did assess whether the effect of the Claimants’ mental impairment, assessed as at 21 and 22 August 2018, was likely to last for at least 12 months.

The Court of Appeal held that the ET did not ask that question. Its conclusion was therefore legally flawed. The matter was remitted to the ET to redetermine.

What can employers take from this?

This case offers useful clarity for employers. It is very common, where an employee brings a claim for disability discrimination, for an employer to either (i) contest disability; or (ii) dispute that they could have had knowledge of the disability.

In the event that a person could be deemed disabled immediately upon first suffering from an impairment, as the ET held in this case for Mr W, it would cause substantial difficulties for employers who do not have the benefit of hindsight when making decisions. The Court of Appeal's decision that evidence should be assessed as at the date of the alleged discriminatory acts seeks to prevent employees who did not suffer from an impairment until after the alleged discriminatory act from falling within the definition of "disabled" within the meaning of the Equality Act 2010.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Siobhan Murphy to discuss any issues you are facing.