When determining whether an impairment is 'long term' for the purposes of assessing disability status, can a tribunal consider events after the date of the discriminatory act?
No, held the Court of Appeal in All Answers Ltd v W and Another.
The Claimants alleged they had suffered disability discrimination on 21st and 22nd August 2018. The Respondent disputed the suggestion that the substantial impact on the Claimants of their impairments had lasted or was likely to last at least 12 months by August 2018.
A tribunal found the Claimants were disabled, but did not assess status at the date of the alleged discriminatory acts and, in the case of R, referred to evidence after August 2018.
The EAT, dismissing the Respondent's appeal, held it was not illegitimate to consider evidence before and after the acts complained of to shed light on the existence of an impairment.
Allowing the Respondent's subsequent appeal, the Court of Appeal following McDougall v Richmond Adult Community College, held the question is whether the effect of an impairment has lasted or is likely to last at least 12 months as at the time of the alleged discriminatory acts. It must be assessed by reference to the facts and circumstances existing at the date of the alleged acts.
Thanks to Barnaby Large of No.18 Barristers Chambers for preparing this case summary.