All Answers Ltd v W & Anor

The Court of Appeal allowed the employer's appeal against an Employment Tribunal ruling that two claimants were disabled under section 6 and Schedule 1 of the Equality Act 2010. The court held that the tribunal had failed to address a discrete but essential element of the statutory definition of disability: whether, as at the date of the alleged discriminatory acts (21–22 August 2018), the substantial adverse effects of the claimants' impairments were likely to last for 12 months (the "long-term" requirement in paragraph 2(1)(b) of Schedule 1). The court applied the principle in McDougall v Richmond Adult Community College that the assessment of likelihood must be made by reference to the facts existing at the material date and must not take into account events occurring after that date. Because the tribunal's reasoning showed it was assessing the claimants' condition at the date of the preliminary hearing rather than at the date of the alleged acts, the tribunal's decision was legally flawed and the matter was remitted to the Employment Tribunal for determination of that issue.

The claimants brought discrimination and related claims alleging that acts on 21 and 22 August 2018 gave rise to disability discrimination and failures to make reasonable adjustments. A preliminary hearing before an Employment Tribunal was convened to determine whether each claimant was a "disabled person" within the meaning of section 6 and Schedule 1 of the Equality Act 2010. The tribunal heard oral evidence from the claimants and received contemporaneous material including disability impact statements, medical records and instant messaging chats. No evidence was adduced for the respondent.

(i) Nature of the application: the hearing was a preliminary determination of the claimants' disability status for the purpose of their ongoing discrimination claims; the court was asked to determine whether the tribunal had correctly decided that each claimant was disabled.

(ii) Issues framed by the courts: the central legal question was whether, as at the date of the alleged discriminatory acts (21–22 August 2018), the claimants' impairments had a "long-term" effect within the meaning of paragraph 2(1)(b) of Schedule 1 to the Equality Act 2010 (i.e. whether the substantial adverse effects were likely to last at least 12 months). Secondary issues concerned whether the Employment Tribunal impermissibly relied on events after the material date and whether its written reasons were adequate.

(iii) Reasoning and outcome: the Court of Appeal held that the tribunal's judgment was expressed in the present tense and focused on the claimants' condition at the date of the preliminary hearing (October 2019) rather than assessing whether, as at 21–22 August 2018, the adverse effects were likely to last at least 12 months. The court observed that the relevant assessment must be made by reference to facts and circumstances existing at the date of the alleged discrimination, consistent with McDougall and with Secretary of State guidance under section 6(5). Because the tribunal did not address whether the long-term requirement was satisfied as at the material date, its conclusion that the claimants were disabled was legally flawed. The Court allowed the appeal and remitted that specific issue to the Employment Tribunal for reconsideration. The court noted evidential matters (medical notes, chats and oral evidence) but did not resolve factual disputes on appeal. The Employment Appeal Tribunal's prior decision dismissing the employer's appeal was set aside insofar as it failed to correct the error; the remainder of the claim remains to be determined at the Employment Tribunal hearing on the remitted issue.

Appeal allowed. The Court of Appeal held that the Employment Tribunal had erred in law by failing to assess whether, as at the dates of the alleged discriminatory acts (21 and 22 August 2018), the substantial adverse effects of the claimants' mental impairments were likely to last at least 12 months (the "long-term" requirement in paragraph 2(1)(b) of Schedule 1 to the Equality Act 2010). The tribunal had assessed the claimants' condition at the date of the preliminary hearing instead of the material date, and the matter was remitted to the Employment Tribunal for determination of that issue.

Employment Tribunal (preliminary hearing on disability status) decision 5 November 2019; Employment Appeal Tribunal dismissed the employer's appeal on 22 May 2020 (UKEAT/0023/20/AT(V)); Court of Appeal allowed the employer's appeal and remitted the long-term assessment to the Employment Tribunal ([2021] EWCA Civ 606, 30 April 2021).