A Tribunal must consider the long-term adverse effect as at the date of alleged act of discrimination for the purposes assessing disability status under Equality Act 2010

A recent Court of Appeal case (CoA) All Answers Ltd v Mr W and Ms R held that in order to satisfy the definition of ‘long-term adverse effect’ for the purposes of assessing disability status for discrimination cases, it must look at the likelihood of long-term adverse effect at the date of the alleged act of discrimination.

In this case, the two claimants brought numerous claims against their employer including disability discrimination. Both claimants suffered from depression and one of the claimants also suffered from PTSD. On 21 August 2018, there was a change to the seating arrangements in the workplace leaving both claimants isolated. When the claimants raised this to their employer on 22 August 2018, the employer failed to deal with these concerns.

The Employment Tribunal held a preliminary hearing to determine whether the claimants met the required disability status of having ‘a physical or mental impairment, that has a substantial and long-term adverse effect on [the employee]'s ability to carry out normal day-to-day activities’ under section 6 Equality Act 2010 (EqA). The ET considered evidence dating after the 21 and 22 August 2018 and held that the claimants both had disability status for the purposes of EqA.

The employer appealed to the EAT on the grounds that the ET had not referred to 21 and 22 August 2018, the dates of the alleged acts of discrimination, when deciding on the disability status. The company also argued that the ET had failed to consider whether there was a substantive and long-term effect and whether it was likely to reoccur. The EAT, though it stated that the ET had not focussed on the dates when deciding whether there was a qualifying impairment and whether it had long-term effect, it was satisfied that it was inferred that the ET had considered this and did not revert back to the ET.

The employer appealed to the CoA, accepting that the claimants had a mental impairment which had substantial adverse effect on their ability to carry out normal day-to-day activities, but appealing on the following grounds:

• The ET had erred in considering facts after the date of the alleged acts of discrimination when assessing disability status; and
• The ET had failed to conclude whether the claimant’s impairments had constituted a long-term adverse effect (likely to last 12 months or longer), and failed to give adequate reasoning for their judgment of the impairments having long-term adverse effect.

The CoA allowed the appeal. It held that the tribunal had failed to consider whether at the date of alleged acts of discrimination (21 and 22 August 2018) the impairment had long-term effect likely to last at least 12 months. The CoA was unsure whether the tribunal had considered matters after the date of the alleged acts as part of its judgment.

This case highlights that not only is it key to understand whether the physical or mental impairment has a substantial adverse effect on an employee’s ability to perform day-to-day activities but it is necessary to assess the long-term affects at the date of the alleged act discrimination. This is determined by assessing whether the impairment is likely to last at least 12 months. This will be the first limb of a disability discrimination claim. Assessments should not be made into the facts after the date of the alleged act of discrimination.