Martin v University of Exeter (DISABILITY DISCRIMINATION)

For the long-term limb of disability under section 6(1) of the Equality Act 2010, an impairment is likely to last 12 months where that outcome could well happen. The inquiry is predictive and must be made from the information available at the relevant time, not hindsight.

A tribunal does not apply a stricter test merely because it says that a future duration could not necessarily have been predicted. The reasons must be read fairly and as a whole. In the absence of expert medical evidence, the tribunal may assess the material provided, including occupational-health evidence.

The Claimant alleged disability discrimination and a failure to make reasonable adjustments. At a preliminary hearing, the Employment Tribunal found that he had post-traumatic stress disorder and became a disabled person from April 2016. The Respondent had conceded that he was disabled by the hearing date.

The Claimant appealed the Tribunal's conclusion about when the long-term criterion was met. The parties agreed before the Employment Appeal Tribunal that the substantial adverse effects had been present from July 2015. The sole live issue was whether the Tribunal had correctly applied the requirement in section 6(1) of the Equality Act 2010 that the effects were likely to last 12 months or more.

1. Appeal dismissed. The Employment Tribunal applied the correct meaning of “likely”, namely that the effects could well happen to last 12 months or more, as stated in SCA Packaging Ltd v Boyle, [2009] ICR 1056.
2. The Tribunal's use of “necessarily” in paragraph 34 of its reasons did not impose a requirement that 12 months' duration must be predicted. Read fairly and in context, it referred to the predictive character of the inquiry. The Tribunal was considering whether the material available in June and September 2015 enabled a person to form a view about likely duration before the later occupational-health assessment.
3. The Tribunal had been referred to the correct test in written submissions and had considered the relevant guidance. It was inherently unlikely that it had disregarded that test and applied a different one. Its conclusion that the long-term criterion was satisfied from April 2016 was therefore not vitiated by an error of law.
4. The Tribunal did not treat nine months' actual duration as a legal precondition to satisfying the long-term criterion. Its reference to that period formed part of its evaluative conclusion on the evidence.
5. The Claimant bore the burden of proving disability. Expert medical evidence was not legally indispensable, although questions concerning mental impairment may often require informed medical opinion. As no expert report was adduced, the Tribunal was entitled to assess all the material before it, including the occupational-health report, without caveat. No error of law was shown in its use of that evidence or its findings.

• Employment Appeal Tribunal: Appeal dismissed; the Employment Tribunal's determination that the Claimant was disabled from April 2016 was upheld.
• Employment Tribunal: Following a preliminary hearing, Employment Judge Roper found that the Claimant was not disabled before July 2015 and was a disabled person for the proceedings from April 2016.