All Answers Ltd v W & Anor

For disability status, it is not enough that an impairment has a substantial adverse effect. The effect must also be “long-term”: under Schedule 1 to the Equality Act 2010, “likely to last at least 12 months” means it could well happen. Likelihood is assessed prospectively at the date of the alleged discriminatory act, using facts and circumstances then existing. Later events cannot establish or negate that likelihood. An employment tribunal must address the issue expressly and give reasons linked to the material date. If it does not, its conclusion is legally flawed and the issue should be remitted unless the error could not affect the result.

The claimants alleged disability discrimination arising from workplace events on 21 and 22 August 2018. At a preliminary hearing, the Employment Tribunal held that both were disabled under section 6 and Schedule 1 of the Equality Act 2010. The Employment Appeal Tribunal dismissed the employer’s appeal: UKEAT/0023/20/AT(V). The employer appealed to the Court of Appeal. The central issue was whether, at the dates of the alleged acts, the substantial adverse effect of each claimant’s mental impairment was likely to last at least 12 months, and whether the tribunal had lawfully assessed that question.

1. The appeal was allowed on grounds 1 and 2. The issue whether the substantial adverse effect of each claimant’s impairment was long-term was remitted to the Employment Tribunal. It was unnecessary to resolve the factual issue raised by ground 3.
2. Under section 6 of the Equality Act 2010, disability requires a physical or mental impairment having a substantial and long-term adverse effect on normal day-to-day activities. The respondent accepted that both claimants had a mental impairment and a substantial adverse effect. The live issue was the long-term requirement.
3. Paragraph 2(1)(b) of Schedule 1 defines long-term, so far as relevant, as likely to last at least 12 months. “Likely” means that the event could well happen, applying Boyle v SCA Packaging Ltd [2009] UKHL 37, [2009] ICR 1056.
4. The assessment is prospective. The tribunal must ask, by reference to the facts and circumstances existing at the date of the alleged discriminatory act, whether the effect was likely to last at least 12 months. Later events cannot be used to determine that likelihood. The same approach applies to the recurrence provision in paragraph 2(2) of Schedule 1. This was the analysis in McDougall v Richmond Adult Community College [2008] EWCA Civ 4, [2008] ICR 431, and is consistent with the guidance issued under section 6(5).
5. The Employment Tribunal assessed whether the claimants were disabled at the later preliminary hearing date. It did not address whether, as at 21 and 22 August 2018, the substantial adverse effect was likely to last at least 12 months, or explain that conclusion by reference to the facts then existing. That was a legal error. A judicial body must identify the relevant issues, make findings of fact, reach conclusions and give adequate reasons. The Court could not be sure that a lawful assessment would produce the same result, so remittal was required.

• Court of Appeal (Civil Division) — Appeal allowed on grounds 1 and 2. The long-term-effect issue was remitted to the Employment Tribunal: [2021] EWCA Civ 606.
• Employment Appeal Tribunal — Appeal against the Employment Tribunal’s preliminary decision dismissed: UKEAT/0023/20/AT(V).
• Employment Tribunal — At a preliminary hearing, held that both claimants were disabled within section 6 and Schedule 1 of the Equality Act 2010. Judgment was given on 5 November 2019 and sent on 12 November 2019.