Chief Constable of Sussex Police v Millard

Where an impairment has not yet lasted 12 months at the date of the alleged discriminatory act, whether its effects are long-term must be assessed prospectively. The tribunal must decide, on the evidence and circumstances then prevailing, whether it could well happen that those effects would last at least 12 months. Later events cannot supply the answer.

A conclusion that a claimant was disabled throughout an earlier period requires intelligible reasons identifying the evidence supporting that predictive assessment.

The Employment Tribunal held at a preliminary hearing that the claimant, who relied on depression, anxiety and panic disorder, was disabled at all material times under section 6 of the Equality Act 2010. It found that the impairment began on 2 March 2012 and that the claimant was dismissed in November 2012.

The Chief Constable appealed. Following a request for further reasons under the Burns/Barke procedure, the parties agreed that the appeal should be allowed. The central issue was whether the Tribunal had an evidential basis for finding, from 2 March 2012, that the impairment was likely to have a long-term effect.

1. Appeal allowed. The Employment Tribunal's finding that the claimant was disabled at all material times was set aside.
2. At the last possible date of discrimination, the impairment had not lasted 12 months. That did not preclude a finding of long-term effect under section 6 of the Equality Act 2010. The Tribunal was nevertheless required to make a predictive assessment of whether the effect was likely, meaning that it could well happen, to last at least 12 months.
3. That assessment had to be made by reference to the circumstances and evidence existing at the date of the alleged discriminatory act. It could not be reached by looking back from subsequent events. The evidence identified by the Tribunal did not intelligibly explain how, as at 2 March 2012, the effect was likely to be long-term. Occupational-health material did not support that conclusion at that stage, and most GP records post-dated it.
4. Having obtained further reasons, the parties still could not understand the basis of the Tribunal's conclusion. In light of that uncertainty and the parties' agreement, allowing the appeal was appropriate.
5. The parties agreed, and the EAT accepted as justified by the evidence, that the claimant was disabled from 13 July 2012. The substituted finding was made accordingly. The case was remitted to the Employment Tribunal, before any Employment Judge, for further directions and case management.

• Employment Appeal Tribunal: allowed the respondent's appeal, set aside the finding that the claimant was disabled at all material times, and substituted a finding of disability from 13 July 2012: [2016] UKEAT 0341_14_2202.
• Employment Tribunal, Havant: at a preliminary hearing, held that the claimant was a disabled person at all material times under section 6 of the Equality Act 2010.