Richmond Adult Community College v McDougall (includes Court Ruling)

Whether an impairment’s substantial adverse effect is “likely to recur” under paragraph 2(2) of Schedule 1 to the Disability Discrimination Act 1995 must be assessed using evidence relating to circumstances at the time of the alleged discriminatory act. Later events cannot establish retrospectively that recurrence was then likely.

The statutory inquiry concerns liability and requires a prediction based on contemporaneous evidence. The principle permitting known subsequent events to inform the assessment of damages or compensation does not apply. “Likely” has the same predictive character in paragraphs 2(1)(b) and 2(2).

The respondent accepted an offer of employment from the appellant, subject to medical clearance. The appellant later withdrew it. An Employment Tribunal found a binding contract and awarded one month’s notice pay, but dismissed the disability discrimination claim because the respondent was not disabled for the purposes of the Disability Discrimination Act 1995.

The Employment Appeal Tribunal, in UKEAT/0589/06/DM, reversed the disability finding. It held that, when deciding whether the adverse effect of an impairment had been likely to recur, the Tribunal could consider a recurrence occurring after the alleged discriminatory act but before the hearing.

The central issue was whether likelihood under paragraph 2(2) of Schedule 1 had to be assessed exclusively by reference to circumstances prevailing when the alleged discrimination occurred.

1. Appeal allowed unanimously. Pill LJ gave the leading judgment. Sedley LJ agreed, and Rimer LJ delivered concurring reasons. The Employment Tribunal’s judgment was reinstated and the respondent’s request for remittal was refused.

2. Paragraph 2(2) of Schedule 1 to the Disability Discrimination Act 1995 introduces a predictive inquiry. An impairment whose substantial adverse effect has ceased is treated as continuing to have that effect only where recurrence is likely. “Likely” bears the same predictive meaning as it does in paragraph 2(1)(b).

3. Whether the claimant was disabled had to be determined at the time of the alleged discriminatory act. The Employment Tribunal therefore had to assess likelihood using evidence relating to the circumstances prevailing at that time. Liability could not be imposed retrospectively by relying upon a later recurrence. Pill LJ held that the statutory purpose of preventing and sanctioning discriminatory decisions required the existence of the wrong to be judged by the evidence available when the decision was made.

4. Rimer LJ explained that a subsequent occurrence proves only that the event happened. It does not prove that the event was likely when viewed from the earlier date. If contemporaneous evidence establishes likelihood, later evidence is unnecessary. If it does not, later evidence cannot fill the evidential gap.

5. The principle associated with Bwllfa and Merthyr v Pontypridd Waterworks Company [1903] AC 426 applies when damages or compensation are assessed after liability has been established. Known events may then replace speculation and prevent over-compensation or under-compensation. That principle does not govern whether statutory liability existed in the first place.

6. The court agreed with the approach taken in Latchman and Spence. Although the applicable statutory Guidance required consideration, it could not displace the Act’s proper construction where inconsistent with it.

7. The court declined to remit the case. The Employment Tribunal’s reference to a psychiatrist’s later letter was merely supportive of a conclusion already reached from the relevant evidence. There was no order as to costs.

1. Court of Appeal (Civil Division): Allowed the appeal in [2008] EWCA Civ 4, reinstated the Employment Tribunal’s judgment and refused remittal.
2. Employment Appeal Tribunal: In UKEAT/0589/06/DM, allowed the respondent’s appeal and reversed the Employment Tribunal’s finding that she was not disabled.
3. Employment Tribunal (London South): Its decision, registered on 27 June 2006, awarded one month’s notice pay for breach of contract but dismissed the disability discrimination claims.