For the purposes of the Disability Discrimination Act 1995 (DDA), someone has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. If an impairment ceases to have such an effect, it is to be treated as having that effect if it is likely to recur.
In Richmond Adult Community College v McDougall, the Court of Appeal examined what evidence can be taken into account by the Employment Tribunal (ET) when deciding whether or not an employee does have a disability that is likely to recur.
Ms McDougall had a history of mental illness. Between 1 November 2001 and 25 February 2002 she was detained in hospital under the Mental Health Act 1983, but had not suffered a recurrence of her illness for the three years prior to applying for a job with Richmond Adult Community College. She was offered the post subject to satisfactory medical clearance but the job offer was withdrawn on the basis that the health report had not cleared her as being fit for work. Ms McDougall claimed that the withdrawal of the job offer was disability discrimination. Before her claim was heard, she suffered a relapse of her illness and was again admitted to hospital under the Mental Health Act in December 2005.
The ET found no evidence that a recurrence of Ms McDougall’s disorder was likely at the time the alleged disability discrimination took place. In its view, she had not demonstrated that the mental impairment had a substantial long-term effect and her health problems did not therefore amount to a disability under the DDA.
However, the Employment Appeal Tribunal (EAT) reversed this decision. In its view, when determining whether an impairment is likely to recur for the purposes of the assessment of disability under the DDA, it is relevant to consider not only evidence existing at the time of the alleged discrimination but also any events occurring up to and including the date of the Tribunal hearing. It was therefore relevant to take into account that Ms McDougall had been committed to hospital again. The EAT went on to say, ‘It is unattractive and possibly inoperable for Employment Tribunals to be expected to ignore the reality of what has occurred so as to found a judgment on what might have occurred’.
The Court of Appeal ruled on what it considered to be a question of the correct interpretation of the law. The decision of an employer which may form the basis of a discrimination claim is made on the evidence available at that time. In the Court’s view, the ET should make its judgment as to whether unlawful discrimination on the part of the employer has been established on the basis of evidence as to circumstances prevailing at the time of the employer’s decision. Subsequent events should not be taken into account. In short, ‘the statute requires a prophecy to be made. It does not permit recourse to evidence as to subsequent events’.
Law Firm Pinder Reaux and Associates says, “This issue has been considered in several cases before the EAT, with differing outcomes, and so this decision of the Court of Appeal is a welcome clarification of the law. However, employers should always take care when making employment decisions affecting a person with a history of illness. We can advise you to ensure that your actions do not lay you open to a claim of unlawful disability discrimination.”
Pinder Reaux & Associates