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Disability Discrimination

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Did a tribunal fail to apply the correct test when using the words "necessarily predicting" in assessing disability?

No, held the EAT in Martin v University of Exeter.

A preliminary hearing was held to determine the date on which the Claimant's disability began and when it became long-term for the purposes of s6 of the Equality Act 2010. The Claimant suffered from PTSD as a result of chancing upon a student trying to hang himself. The tribunal had no difficulty on the evidence in finding an impairment.

Richmond Adult Community College v McDougall means that the impairment must be assessed predictively. A Claimant cannot rely on the fact that he has been impaired for a year by the time of the hearing. If the impairment is not long-term, the next test is whether it is likely to be long-term. The relevant test then is SCA Packaging v Boyle, meaning that it "could well happen".

The EAT made reference in his judgment to "necessarily predicting" the duration of the impairment and unfortunately failed to cite SCA Packaging v Boyle. The Claimant asserted that this demonstrated that the tribunal had applied the wrong test. The correct test contains no obligation to demonstrate certainty.

The EAT held that the SCA Packaging v Boyle test had been applied correctly despite there being no explicit mention of it. The word "necessarily" was used in a loose colloquial sense.

This case demonstrates the peril of seeking to establish disability without adducing expert medical evidence.

Thanks to Karen Jackson of didlaw for preparing this case summary.

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