• A tribunal should take into account a claimant's condition after an alleged discriminatory act but prior to the tribunal hearing in deciding whether a claimant's impairment is likely to last 12 months (in order to satisfy the definition of disability).
  • At the date that a job offer was withdrawn on medical grounds, there was no evidence that the applicant's impairment was likely to recur, but it subsequently did recur within the 12 month period, and the claimant was therefore able to claim disability discrimination. (McDougall v Richmond Adult Community Centre, EAT) This contradicts previous EAT caselaw which established that the assessment of disability should be done as at the date of the discriminatory act. It seems odd that someone whose claim would have been dismissed had the tribunal heard it shortly after the act complained of can succeed, in effect due to the time the tribunal procedure takes. However, given that an employer can be liable for discrimination even where it is ignorant of the individual's disability status, employers should already be erring on the side of caution and assuming that applicants or employees with medical conditions may be disabled. 
  • To qualify as disability, an impairment must affect "normal day-to-day activities"; statutory guidance states that this term does not include specialised activities involved in a particular type of work or hobby. The EAT has now ruled that, in order to comply with EU law, it must be interpreted as including activities which are "relevant to participation in professional life". In this case the claimant's dyslexia amounted to disability as it substantially affected his performance in an assessment for promotion. (Paterson v Commissioner of Police of the Metropolis, EAT) Assessments and examinations are not peculiar to a particular type of job (more so to reaching a senior level); it remains to be seen whether impairments only affecting skills needed by one specific type of job will now also be covered.
  • A tribunal may extend the three month time limit for submitting a disability claim where a claimant is genuinely reluctant to acknowledge that he is disabled, eg where it is a mental illness, or where the physical injury is on the margin of being perceived to be disabling. It was also relevant that the employer itself disputed whether the claimant was disabled, and that it had unreasonably expedited the dismissal procedure, thereby giving the individual less time to consider his position. (Department of Constitutional Affairs v Jones, CA)
  • An employee's claim to be disabled (with post-traumatic stress disorder), which was not supported by any evidence despite the employer's requests and enquiries, did not fix the employer with knowledge of his disability and therefore it had no duty to make reasonable adjustments. (Jama v Alcohol Recovery Project, EAT)