Case Law: Double Discrimination & Disability

Ben McCarthy

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17 Dec 2020

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The Employment Appeal Tribunal (EAT) has ruled that in circumstances where there is no evidence of a disability on the date of an alleged act of discrimination, the ET is entitled to consider all evidence available from around this date and infer that a disability was present at the relevant time.

Under the Equality Act 2010, a person is said to be disabled if they have a condition that is a physical or mental impairment. It must have a substantial and long-term adverse effect on someone’s ability to carry out normal day-to-day activities. ‘Long-term’ means that the impairment has lasted, or is likely to last, for at least 12 months.

For a disability discrimination claim to succeed it will need a few things. The most important however is being able to prove that the claimant is disabled. Not only this, but the individual must also be able to prove that they were disabled on the date the discrimination occurred. It can be difficult to prove this in circumstances where there is minimal evidence to demonstrate it. For example, such as the lack of medical evidence.

An important precedent to this case is Richmond Adult Community College v McDougall. In this case, the Court of Appeal outlined that tribunals should consider if there was ‘objective’ evidence of the disability at the time of discrimination.

All Answers Ltd v Wain and Radulovska

Facts

In this case, two separate claimants brought multiple discrimination claims against an organisation.

It began with a change in seating arrangements in their place of work. They argued that this placed them at a disadvantage due to their disabilities. The claimants also argued that their concerns about the change were ignored. This incident was alleged to have taken place in August 2018.

The first claimant stated that he had been suffering from depression and anxiety from April 2018. However, this only came to light after the alleged act of discrimination. The second claimant put forward that she suffered from anxiety, depression and PTSD.

Employment Tribunal (ET)

The ET assessed if both claimants could be considered as having a disability on the date of the alleged discriminatory incident. Crucially, the tribunal had no direct evidence of their situation on that particular date. Therefore, they focused on evidence from both before and after the incident. Ultimately, the ET held that both claimants were disabled.

Claimant number one

Based on the evidence available, the tribunal saw that the employee began suffering from a qualifying impairment in April 2018. This impairment met the definition outlined in the law. From this, they inferred that they were still suffering from it by August of that year.

Claimant number two

For this employee the tribunal relied heavily on a testimonial from the first claimant. Ultimately they concluded that this individual also met the legal definition on the date in question.

This meant that both claimants could proceed with their claims of discrimination.

Employment Appeal Tribunal (EAT)

The organisation appealed against this decision. They took issue with how the tribunal had reached their decision. Their main argument was that the tribunal shouldn’t seek to rely on evidence from before or after the date of alleged discrimination. Instead, they should determine the situation based on evidence available on the date of the incident.

The EAT dismissed their appeal. They agreed that the ET hadn’t used the Richmond principle to form their decision. In other words, they hadn’t used evidence available on the date of the incident. However, this alone didn’t show a defect in the judgement.

In this case, the tribunal needed to examine the period when the acts complained of occurred, If there was evidence of impairment shortly after the date of incident, failure to focus on the date was not, in itself, a defect.

Claimant number one

The EAT was satisfied that the tribunal had fairly reached a conclusion:

His symptoms had begun in April 2018 and continued right up to the date of the hearing. They had addressed all relevant evidence in question and had been entitled to make this conclusion.

Claimant number two

The EAT judged that the tribunal had carefully considered all evidence. They clearly demonstrated why they felt the testimony from the first claimant in this situation was reliable. The EAT explained that tribunals need to act like a jury when there is limited evidence available. The tribunal had done this fairly.

Note for employers

This case is an interesting conclusion. It shows that tribunals can look at evidence available around the date of an alleged act of discrimination. At least in situations where there is no direct evidence that a claimant was disabled on the date in question. That said, this is again likely to be very fact specific. We do not yet know what the ultimate outcome of this claim will be.

So what should your takeaway be?

When making changes to an employee’s working day, take into account issues raised by staff. This is especially important if they claim it is impacting upon their disability. Ignoring such problems could lead to a discrimination claim.

The ET didn’t refer to Richmond and didn’t focus on whether there was a qualifying impairment. However, this wasn’t fatal to the case. This isn’t a defect if the ET demonstrate two things:

  1. That they thoroughly examined the period when the acts complained of occurred
  2. There was evidence of impairment shortly before or after it.

From this evidence, the ET accepted that the impairment existed at the time of the incident.

Expert support

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About the Author

Ben McCarthy works as a content writer for Croner producing commentary and guidance on employment law and key HR developments. Coming from an extensive legal background, Ben regularly constructs key training materials for clients and advisers, and provides daily contributions to national publications.

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