Court of Appeal
Published February 22, 2008
McDougall v Richmond Adult Community College
Before Lord Justice Pill, Lord Justice Sedley and Lord Justice Rimer
Judgment January 17, 2008

When determining whether an adverse effect on a person’s ability to carry out normal day-to-day activities was likely to recur, an employment tribunal should make its determination on the basis of evidence available at the time of the alleged disability discrimination.

The Court of Appeal so held when allowing the appeal of Richmond Adult Community College from the Employment Appeal Tribunal ([2007] ICR 1567) which had allowed the appeal of the claimant, Elizabeth McDougall, from the dismissal by a South London employment tribunal on June 27, 2006 of her complaint of disability discrimination on the ground that she did not have a disability under the Disability Discrimination Act 1995.

Mr Adam Ohringer for the college; Mr James Petts, assigned by the Free Representation Unit, for Ms McDougall.

LORD JUSTICE PILL said that section 1(1) of the 1995 Act contemplated that, for a disability within the meaning of the Act to exist, a physical or mental impairment having a long-term adverse effect on the person’s ability to carry out his normal day-to-day activities had to be established.

Paragraph 2(2) of Schedule 1 to the Act provided that where the effect of the impairment had ceased, it might still be treated as having a long-term effect if the effect was “likely to recur”.

The respondent submitted that the likelihood of recurrence had to be considered on the basis of circumstances existing at the date of the alleged discriminatory act on which the claim was based.

The claimant submitted that the true construction of paragraph 2(2) was for the employment tribunal to consider all relevant evidence about the impairment which emerged up to the date of the hearing before them and to assess what was likely to occur in the light of what had occurred. If there had been a recurrence, that was to be taken into account.

In his Lordship’s judgment, if employers were to avoid the sanctions which might result from disability discrimination, they must first decide whether the employee was disabled within the meaning of the 1995 Act.

They did that by applying a series of tests which, in an appropriate case, included that in paragraph 2(2) of Schedule 1. That involved a prediction on the available evidence. The employer’s decision was inevitably taken on the basis of the evidence available at the time.

In his Lordship’s judgment, it was on the basis of evidence as to circumstances prevailing at the time of that decision that the employment tribunal should make its judgment as to whether unlawful discrimination by the employer had been established.

Whether a wrong had been committed had to be judged on the basis of the evidence available at the time of the act alleged to constitute the wrong.

Lord Justice Sedley agreed and Lord Justice Rimer gave a concurring judgment.

Solicitors: Lyons Davidson, New Malden.

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