In the lead up to Disability Awareness Day on 12 September 2021, this week's spotlight is on the case of All Answers Ltd v W [2021] where the Court of Appeal reaffirmed the importance of timing when determining disability status.

How is 'disability' status determined? 

Under section 6 of the Equality Act 2010 (EqA 2010) an individual is deemed to be 'disabled' if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. For the effect to be 'long-term' it must have lasted or be likely to last at least 12 months (Schedule 1 EqA 2010). 

The question arises, at what point should the effect of an impairment be assessed in order to determine whether it is 'long-term'? 

In the case All Answers Ltd v W and another, two Claimants alleged they had suffered disability discrimination on 21 and 22 August 2018. At a Preliminary Hearing to determine disability status, the Employment Tribunal decided both Claimants were disabled within s.6 of the EqA 2010. The employer appealed the decision, contending that whilst the Claimants were suffering from mental impairments which had substantial adverse effects on their respective abilities to carry out day-to-day activities, the impairments and effects had not lasted and were not likely to last at least 12 months at the date the discrimination is alleged to have occurred.

The Employment Appeal Tribunal (EAT) rejected the appeal at first instance and the employer subsequently appealed to the Court of Appeal. The basis of the appeal was that:

  • The Employment Tribunal failed to question whether as at on 21 and 22 August 2018 the effect of the impairment was likely to last for 12 months or likely to recur; and
  • The Employment Tribunal took into account matters which occurred after 21 and 22 August 2018.

The Court of Appeal identified the key question was whether at the time of the alleged discriminatory acts, the effect of the impairment was likely to last at least 12 months. Following the decision in the case of McDougall V Richmond Adult Community College, it concluded that this question should be "assessed by reference to the facts and circumstances existing at the date of the alleged discriminatory acts" and unequivocally confirmed that the Tribunal is not entitled to have regard to events occurring after the date of the alleged act. Following this, it concluded that the Tribunal had failed to explicitly adopt this approach in assessing whether the Claimants' mental impairments were likely to last at least 12 months as at 21 and 22 August 2018. The EAT had incorrectly discounted this error and the case was remitted to the Tribunal.

Lessons to be learnt

This decision is a useful reminder that when assessing whether a disability is long lasting so as to acquire 'disability' status under the EqA 2010, the adverse effects must be considered with reference to the facts and circumstances prevailing at the date the discriminatory act took place. However, it is important to bear in mind that the Tribunal will not be able to consider evidence of the effects arising after the alleged acts of discrimination in determining whether or not the purported disability is likely to last at least 12 months. This could be tricky, and present some obstacles, particularly when the disability is a mental impairment which does not necessarily present evidential effects every day.  

Key Contacts

Kelly Brown

Kelly Brown

Legal Director, Employment
Edinburgh, UK

View profile
Kathleen Gallacher

Kathleen Gallacher

Associate, Employment

View profile