2
(1)
The effect of an impairment is long-term if—
(a)
it has lasted for at least 12 months,
(b)
it is likely to last for at least 12 months, or
(c)
it is likely to last for the rest of the life of the person affected.
(2)
If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.
(3)
For the purposes of sub-paragraph (2), the likelihood of an effect recurring is to be disregarded in such circumstances as may be prescribed.
(4)
Regulations may prescribe circumstances in which, despite sub-paragraph (1), an effect is to be treated as being, or as not being, long-term.
Cases considering Schedule 1, paragraph 2 49
[2021] EWCA Civ 1694 · 16 November 2021Interprets
The court applied the long-term requirement. The Tribunal was entitled to find that the 2017 substantial adverse effect would probably persist for months, but for less than 12 months. (see paras [22]; [40])
Whether a substantial adverse effect is likely to recur is assessed on the evidence at the time of the alleged discriminatory act. Earlier episodes may be relevant, but a Tribunal may find no likely recurrence where a particular triggering stressor was unlikely to continue or recur. (see paras [93]-[95])
[2021] EWCA Civ 606 · 30 April 2021Interprets
The court interpreted “likely to last at least 12 months” prospectively. “Likely” means that the event could well happen, assessed by reference to facts and circumstances existing at the date of the alleged discrimination (see paras [25]-[26]).
The court held that the same prospective, date-based approach applies when assessing whether a ceased substantial adverse effect is likely to recur, although recurrence was not the live issue on the appeal (see para [26]).
[2019] EWCA Civ 5 · 22 January 2019Limits
The statutory disability definition includes a duration requirement. That definition does not limit the extension discretion because a serious episode of mental ill-health may be highly relevant even if it has not lasted, and is not likely to last, more than 12 months (see para [38]).
29 more judgments, and what each says about Schedule 1, paragraph 2, are in the
case-law panel in the full Act.