loading icon

In order to qualify as a disability under the Equality Act 2010, an impairment must have a substantial and long-term adverse effect on an employee’s ability to do day to day activities. The long-term requirement is met if the impairment has lasted, or is likely to last, at least 12 months. A recent case in the Court of Appeal has looked at when that assessment should take place, at the time of the discrimination or with the benefit of hindsight when preparing for a tribunal hearing.

In All Answers v W and R, the employees said their depression and post traumatic stress disorder met the legal test for disability. They said they had been discriminated against on 21 and 22 August 2018. The employer challenged their disability status, saying that in August 2018 the impairments had not lasted, and were not likely to last, at least 12 months. The employment tribunal considered evidence about the effect of the disability after August 2018. Their conclusions about disability were described in the present tense, apparently at the date of the tribunal hearing, rather than assessing what the position had been in August 2018. The employer appealed to the EAT and lost, then appealed to the Court of Appeal. The issue to be decided was whether the impairments met the long-term test.

The Court of Appeal looked at what ‘long-term’ meant. The impairments arose in April 2018, so had not lasted for 12 months by August 2018. The question then was whether the substantial adverse effects of those impairments were ‘likely to last for 12 months’ at the time of the alleged discrimination. That question must be answered using the facts and circumstances which existed at that time, not with the benefit of hindsight or evidence from after that date. The Court concluded that the tribunal had not asked that question. They said the employees ‘are disabled’, not ‘were disabled’ at the relevant time. The use of the present tense, asking ‘is [the employee] disabled?’ clearly showed this error. The employer’s appeal succeeded, and the case was sent back to the employment tribunal to decide the issue properly.

This case demonstrates the complexity of the law on disability, with the Court of Appeal saying even learned judges in the EAT had got it wrong. Employers should always tread carefully with employees who say they are disabled. Early legal advice is essential to ensure cases are defended robustly and in accordance with the complex legal test.

Find out how we can help.  Our partner, Jon Dunkley, heads the Wollens specialist Employment Department.  Contact him today for an informal chat, without obligation on 01271 342268 or via email at jon.dunkley@wollens.co.uk.