In the case of McDougall v Richmond Adult Community College (RACC) the EAT has ruled that events after the discrimination complained of could be used as evidence when determining whether an impairment has a "long-term effect" for the purposes of disability discrimination. It also held that where an employee has been detained under the Mental Health Act, this would most certainly fall within the definition of disability under the Disability Discrimination Act 1995 (DDA).
Ms McDougall had a history of mental health problems and had been sectioned under the Mental Health Act for four months. RACC offered her employment subject to health clearance but withdrew the offer when an occupational health report deemed her unfit for work. Ms McDougall lodged a claim of disability discrimination. Following this she was again compulsorily admitted to a mental institution. The employment tribunal held that her disorder did not fall within the definition of disability under the DDA as evidence available at the time of the alleged discrimination indicated that her disorder was not likely to recur and so would not have a long-term effect on her ability to carry out activities.
Relevance of events after the alleged discrimination
The EAT pointed out that (as may indeed be obvious) detention in a mental hospital would be a restriction on a person's ability to carry out 'day-to-day' activities and so partially met the statutory test of disability. The issue was whether, at the time of the discrimination, it could be said that Ms McDougall's condition was likely to last for a period of 12 months or recur in the future.
The EAT held that it was proper to take into account recurrences that followed the discriminatory act(s) but prior to the tribunal hearing.
Impact on employers
- This is a controversial decision as it does appear to contradict recently reissued statutory guidance on the point.
- Where the only issue is whether the employee's condition will have a long-term affect, a prudent assumption is that it will unless there is medical evidence to the contrary.