Assessing disability: Impairment must be long-term when discrimination occurs

When considering disability and whether an impairment’s effects are long-term, a tribunal must consider the position at the date when the discrimination is alleged to have taken place. 

When is someone disabled? 

A person is disabled under the Equality Act 2010 if they have an impairment which has a substantial and long-term adverse effect on their ability to carry out normal day to day activities. The effect of an impairment is long-term if it has lasted or is likely to last for 12 months (or for the rest of the person’s life).

When do you assess disability?

In All Answers Ltd v W and anor, the claimants brought discrimination claims alleging that their employer discriminated against them on 21 and 22 August 2018. The Court of Appeal noted that a tribunal considering whether the effect of an impairment is long-term should consider the position at the time when the alleged discrimination occurred. So the tribunal had to consider whether the impairment had lasted or was likely to last for 12 months as at 21 and 22 August 2018.  In addition, this had to be assessed by reference to the facts and circumstances existing at that date.

Although the employer accepted that the claimants each had an impairment as at 21 and 22 August 2018, the tribunal had not considered whether the impairment’s effects were long-term at that time. Instead, the tribunal appeared to have made the assessment at the date of the hearing and had possibly taken account of events occurring after 21 and 22 August. The case was sent back to the employment tribunal to determine whether the claimants were disabled at the time of the alleged discriminatory acts. 

What does this mean?

Employers facing disability discrimination claims should consider whether they can argue that the claimant was not disabled at the time of the alleged discrimination, because the effects of the impairment were not long-term at that date. If the effects have not lasted for 12 months and the claimant has not shown that they were likely to last more than 12 months, they will not be disabled under the Equality Act 2010.

Claimants bringing disability discrimination claim should ensure they obtain medical evidence demonstrating that at the time the alleged discrimination occurred their impairment had lasted or was likely to last for 12 months.