McDougall v Richmond Adult Community College: [2008] EWCA Civ 4

CA: Pill, Sedley and Rimer LJJ: 17 January 2008

The claimant, who had a history of mental illness, was offered a job by the respondent college subject to health clearance. The offer was subsequently withdrawn on the ground that the health report had not cleared her as fit for work. Dismissing her complaint of disability discrimination, an employment tribunal found that the claimant did not have a disability for the purposes of the Disability Discrimination Act 1995since, although she had a mental impairment within the meaning of section 1(1) of the Act, any substantial adverse effect which that impairment had on her ability to carry out normal day-to-day activities had ceased by the time of the alleged discrimination and was not “likely to recur”, within the meaning of paragraph 2(2) of Schedule 1, so that the effect of the impairment was not “long-term” as required by section 1(1). The Employment Appeal Tribunal allowed the claimant’s appeal, holding that in assessing whether the effect of the claimant’s mental impairment was likely to recur the tribunal had erred in failing to take into account the fact that it had recurred after the date of the alleged discrimination but before the tribunal hearing.

The employer appealed.

The Court of Appeal held:
Whether an employer had committed an act of discrimination under the Disability Discrimination Act 1995 had to be judged on the basis of evidence available at the time of the act alleged to constitute discrimination. Therefore, in determining whether the adverse effect of a person’s impairment was “likely to recur” within the meaning of paragraph 2(2) of Schedule 1 to the Act, an employment tribunal should not have regard to subsequent events. Accordingly, the employment tribunal had not erred when it did not take account of the later recurrence of the claimant’s mental impairment in finding that she did not have a disability within section 1.

The appeal was allowed.

Appearances: Adam Ohringer (Lyons Davidson, New Malden) for the employer; James Petts (Free Representation Unit) for the claimant.