The relevant time for assessing the likelihood of a disability reoccurring is at the time of the alleged discriminatory act. Subsequent events, which might influence that decision, do not fall to be considered. This was the finding of the Court of Appeal in Richmond Adult Community College v Elizabeth McDougall, a recent case on disability discrimination.
Discrimination on the grounds of disability is prohibited by the Disability Discrimination Act 1995 (“the Act”). Employers will be familiar with the definition of disability, set out at Section 1(1) of the Act and supplemented by Schedule 1, below:
Section 1(1) provides:
“Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day-to-day activities.”
Paragraph 2 of Schedule 1 provides:
“(1) The effect of an impairment is a long-term effect if –
(a) It has lasted at least 12 months;
(b) The period for which it lasts is likely to be at least 12 months; or
(c) It is likely to last for the rest of the life of the person affected
(2) Where an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.”
The existence of a disability can often be readily established when the relevant impairment has already lasted, or is likely to last, at least 12 months. In many cases the use of an expert report will assist the tribunal in determining the issue. Matters become more complicated, however, in the type of cases envisaged by paragraph 2(2) of the schedule set out above: that is, where the impairment has ceased, but might recur. Therefore, the correct approach is to consider the likelihood of recurrence of an impairment as at the date of the alleged act and not look back with knowledge of later events. As ever, care should be taken to seek medical advice on the impairment and prognosis, for individuals in such cases.
The Court of Appeal’s judgment in Richmond Adult Community College v Elizabeth McDougall has been welcomed as a Supreme Court decision on the issue of when to determine the likelihood of recurrence. The issue under consideration was this: when determining whether the employee is disabled (within the meaning of the Act) do you limit consideration of whether the recurrence is “likely” to the facts known at the time of the alleged discriminatory act, or, can you look forwards in time from the act complained of and include facts known later
Until now, there have been several conflicting decisions of the Employment Appeal Tribunal, which were broadly split between those favouring the narrow approach of considering what is known at the time and those preferring to consider events up to and including the tribunal hearing.
In this case, the Court of Appeal held, in interpreting the meaning of “likely” in paragraph 2(2) that:
i) Employers must decide whether a person is a disabled person at the time they decide how to act in relation to that person;
ii) Where the employee or prospective employee has not suffered a long-term adverse effect for at least 12 months, the employer must make a prediction as to whether a long-term adverse effect is likely;
iii) The employer’s decision is inevitably taken on the basis of the evidence available at the time that decision is taken;
iv) It was on the basis of evidence of the circumstances prevailing at the time of the decision or act complained of that the Tribunal should reach its decision;
v) It is fundamental that the question whether a wrong had been committed be judged by the evidence available, and circumstances existing, at the date of the act or acts alleged to constitute the wrong.