Disability Judged At Date Of Hearing Not Date Of Alleged Discriminatory Act

Under the Disability Discrimination Act 1995 (the DDA) a person has a disability if: “…he has a physical or mental impairment which has a substantial and long-term effect on his ability to carry out normal day-to-day activities.”

In the recent case of McDougall v. Richmond Adult Community College the EAT considered how tribunals should assess the likelihood of recurrence of an impairment.

Ms McDougall had a history of mental illness. In November 2001 she was sectioned under the Mental Health Act and in February 2002 was discharged into the care of a consultant psychiatrist. She was offered the job of database assistant at Richmond Adult Community College on 1 April 2005.

The job offer was withdrawn on 22 April 2005 on the ground that medical clearance was not available. Ms McDougall brought a claim of disability discrimination. Between the date of the act of alleged discrimination and the date of the hearing Ms McDougall suffered a relapse which resulted in her being sectioned again in December 2005.

The College argued that Ms McDougall was not disabled within the meaning of the DDA. At first instance the Tribunal agreed with the College. In particular, it held that, as at the date complained of, there was no likelihood of recurrence of her mental impairment.

The EAT disagreed and allowed the appeal. Importantly, it held that whether Ms McDougall’s mental impairment resulted in a long-term adverse effect should be decided on the facts known at the time of the Tribunal hearing (i.e. that she had relapsed and been sectioned again) and not restricted to the facts known only at the date of the alleged act of discrimination.

This decision makes employers more vulnerable to claims of discrimination when faced with an employee (or indeed an applicant as in this case) whose medical condition is potentially one that will recur. A medical prognosis to ascertain the likely long-term effect of the impairment should still be obtained. However, unless the employer obtains a fairly robust medical opinion that there is no likelihood of recurrence, it would be advisable to err on the side of caution and assume that the employee is disabled.