Case Law: Disability Discrimination In 2021 ' Lessons From Recent Decisions

• Published date: 09 July 2021
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employment Litigation/ Tribunals, Employee Rights/ Labour Relations
• Law Firm: Boyes Turner
• Author: Mr Barry Stanton and Jemille Gibson

Published in the Employment Law Journal Issue 222 (July/August 2021). If you are a member, you can view it here

Barry Stanton and Jemille Gibson examine the key points to arise from the latest crop of disability discrimination cases.

The news that a dismissed employee was awarded more than '2.5m for disability discrimination and harassment has garnered a lot of headlines recently. However, there have been several other decisions this year which have highlighted some tricky issues for employers to consider when dealing with employees or job applicants with potential disabilities. Here, we round up the main learning points for employers and their advisers.

What point in time do we use to assess whether a person is disabled?

It is often important to revisit what we all think we know intuitively. The Court of Appeal's decision in All Answers Ltd v W [2021] considers the correct date for a tribunal to use to assess whether a claimant is disabled. This can be difficult to identify as, by the time any claim reaches the tribunal, months, possibly years, will have passed.

The statutory test from Sch 1(2) Equality Act 2010 is well known:

The effect of impairment is long-term if:

(i) it has lasted for at least 12 months, or
(ii) it is likely to last for at least 12 months, or
(iii) it is likely to last for the rest of the life of the person affected.

The question of whether an impairment is likely to last for at least 12 months can be unclear at the time of an employer's actions. However, this is generally apparent by the time of the hearing.

In All Answers, Mr W and Mrs R brought various discrimination claims, including claims for disability discrimination. They claimed that they suffered from depression (and, in the case of Mrs R, post-traumatic stress disorder) in August 2018, when the alleged discriminatory events took place. These events were that the office seating arrangements were changed so that they were no longer near each other and Mr W was given an informal warning.

The tribunal held that both claimants were disabled. Mr W claimed that he began to notice symptoms of depression from April 2018. Mrs R gave evidence that:

She had ceased to socialise with all but Mr W... had postponed her wedding...
given up dancing... she no longer goes out on her own.

The tribunal also took note of a medical record about her from September 2018 (ie a month after the alleged discrimination took place).

The employer appealed and the case came before the Court of Appeal. In giving the court's decision, Lewis LJ referred to the decision in SCA Packaging Ltd v Boyle [2009] that 'likely' in the context of 'likely to last at least 12 months' means 'could well happen'. He concluded that the tribunal had not asked itself the correct question, which is whether the claimants' impairment at the date on which the discriminatory treatment occurred was likely to last for at least 12 months. The court remitted the case to the tribunal to determine this point.

Lessons

The employer's actions or inactions can only be judged in the light of circumstances at the time of those actions. Tribunals are not permitted to take account of events that occur after the alleged discriminatory acts. This is in accordance with the earlier Court of Appeal judgment in Richmond Adult Community College v McDougall...