Key Contact: Claire Knowles
In recent case law, it has been found that an employment tribunal cannot consider events after the date of the occurrence of a discriminatory act when deciding whether an impairment is “long term”, for the purposes of assessing whether an individual is “disabled”.
The law on disability
Section 6 of the Equality Act 2010 defines disability as a physical or mental impairment that “has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities“.
“Long term” is further defined as meaning:
“2(1)The effect of an impairment is long-term if—
- it has lasted for at least 12 months,
- it is likely to last for at least 12 months, or
- it is likely to last for the rest of the life of the person affected.”
All Answers Ltd v W & Anor  EWCA Civ 606
In the recent judgment, the claimants brought a claim for unfair dismissal and discrimination on the grounds of disability in relation to various matters occurring in August 2018.
With reference to the definition of disability above, in the present case, the respondent accepted that, as at 21 and 22 August 2018, each claimant had a mental impairment which had a substantial adverse effect on that claimant’s ability to carry out day to day activities. The only issue was whether the impairment had a “long term” substantial adverse affect.
Whether an impairment is likely to last for at least 12 months is to be assessed by referenced to the facts and circumstances at the date of the alleged discriminatory acts. The tribunal essentially has to make a prediction as to how long the impairment is going to last from the date the discriminatory act occurred, without considering the events thereafter. In this instance, it was concluded that the decision reached by the employment tribunal was legally flawed in that whether the impairment was “long term” was not judged with reference to the dates of the alleged discriminatory acts and in the case of one of the claimants, the tribunal wrongly took into account events occurring after this date. The appeal of the decision was therefore allowed.
The correct approach?
Similarly, in Tesco Stores Ltd v Tenant, the Respondent bought a claim of disability discrimination in September 2017, relying on various acts from September 2016 onwards. The disability in this instance was depression. At each of the exact points in time she said she had been discriminated against, it could not be said that her disability had lasted for 12 months. She further had no evidence that at those points in time it was likely that her disability would last for longer than 12 months. Despite the fact that it did last for longer than 12 months, legally, her impairment could not be classed as “long term”.
Some consider the law to be disadvantageous to people with mental rather than physical problems where if a mental health issue has not lasted for over 12 months at the time of the discrimination, it is particularly difficult to tell whether it might last for a further 12 months.
Nevertheless, the law on this area seems relatively clear, though there can be difficulty in applying it on a case by case basis. At Acuity, we have vast experience in advising on, pursuing and defending discrimination claims. Following the COVID-19 pandemic, we expect to see an increased number of employees reporting symptoms of ‘Long Covid’. As the symptoms and the duration of Long Covid still remain unclear, problems may arise when assessing whether Long Covid will pass the legal test and qualify as a disability. However, given the number of reported cases which have lasted a number of months without improvement, it is likely that this will be possible in some cases.
If you have any queries or would like any assistance, please feel free to contact a member of the employment team.