C & Ors v A & Anor

Whether an impairment is long-term and existed when the alleged discrimination occurred is a fact-sensitive question for the Employment Tribunal. Evidence before and after the material dates may properly support an inference that the impairment existed at those dates and was likely to last at least 12 months.

On an appeal concerning a substantially medical issue decided without expert evidence, the Employment Appeal Tribunal should not readily interfere where the Tribunal considered the relevant material and its reasons sufficiently show that it addressed the correct questions. Non-material inaccuracies in reasons do not require remittal.

The claimants brought Employment Tribunal claims for direct disability discrimination, discrimination arising from disability, and failure to make reasonable adjustments. The alleged acts concerned a change to workplace seating arrangements and related treatment on 21 and 22 August 2018.

At a preliminary hearing, the Employment Judge held that both claimants were disabled within the meaning of the Equality Act 2010. The respondents appealed, contending principally that the Judge had wrongly assessed whether the impairments were long-term and had insufficiently reasoned the finding concerning the second claimant.

The central issue was whether the Judge could infer the existence and likely duration of disability at the material dates from evidence arising before and after them.

1. Appeal dismissed. Lord Summers held that the Employment Judge was entitled to find that the first claimant's impairment existed on 21 and 22 August 2018, although the reasons did not expressly isolate those dates.

2. The requirement in section 6 and Schedule 1 paragraph 2 of the Equality Act 2010 was to determine whether the impairment existed at the dates of the alleged discriminatory acts and was likely to last at least 12 months. That assessment was objective and fact-sensitive. The Tribunal could examine evidence from before and after those dates where it shed light on the impairment's existence at the material time and on its likely duration.

3. The Judge had accepted evidence that the first claimant's symptoms began in April 2018 and considered medical evidence and testimony shortly after the alleged acts. In the absence of evidence that the condition had ceased or was not continuing, the Judge was entitled to infer that it existed on the material dates. The broad finding concerning the period of impairment encompassed the narrower finding required for those dates.

4. The reasons for finding that the second claimant was disabled were limited. However, the issue was largely medical, no expert medical evidence had been called, and the Judge had considered the relevant evidence. An appellate tribunal should not readily overturn such an evaluative decision merely because fuller reasoning could have been given. Remittal would serve no purpose.

5. The Judge's reference to long-term effect at the date of the preliminary hearing, rather than solely by reference to what was known at the material date, was inaccurate but immaterial. The respondents did not pursue their cross-appeal.

• Employment Appeal Tribunal: appeal dismissed. The preliminary finding that both claimants were disabled was upheld.
• Employment Tribunal: at a preliminary hearing on 28 October 2019, the Employment Judge found that the claimants were disabled within the meaning of the Equality Act 2010.