Disability; long-term effect; whether an impairment was likely to recur or last 12 months must be determined by reference to the evidence available at the time of the alleged discriminatory act.
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Disability; mental impairment; depression. The EAT (Underhill P) said that, when considering impairment in cases of alleged depression, tribunals should be aware of the distinction between clinical depression and a reaction to adverse circumstances: both can produce symptoms of low mood and anxiety, but only the first should be recognised as an impairment under the DDA. It is good practice for tribunals to state their conclusions separately on impairment and adverse effect, but they need not proceed by rigid consecutive stages. Where the existence of an impairment is disputed, a tribunal may start with whether the claimant's ability to carry out normal day-to-day activities is adversely affected on a long-term basis and consider impairment in the light of those findings. [Summary checked against a practitioner text, not the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Disability; stress; mental impairment; s.6 EqA 2010. Adding to J v DLA Piper, the EAT said there is a class of case where a reaction to circumstances perceived as adverse becomes entrenched: the person will not compromise over an issue at work and refuses to return, yet suffers little or no other adverse effect on normal day-to-day activities [56]. A tribunal is not bound to find a mental impairment in such a case; unhappiness with a decision, a tendency to nurse grievances or a refusal to compromise are not of themselves mental impairments [56]. A long period off work is not conclusive of a mental impairment [71]. The claimant established neither a mental impairment nor the requisite substantial long-term adverse effect: disability appeal dismissed [72]. On the separate costs appeal, the award of the whole costs was inadequately reasoned once ability to pay was taken into account: remitted to the same tribunal [41], [43].
Disability; long-term effect; whether an impairment was likely to last 12 months must be assessed at the date of the alleged discriminatory act, not with hindsight.
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Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Disability; long-term effect; recurrence. Whether a substantial adverse effect is likely to recur (Sch 1 para 2(2) EqA) is a question of fact, assessed at the date of the alleged act without regard to later events (McDougall; All Answers). Episodic recurrence will often suggest a further episode could well happen, but not always: where the effect was triggered by a particular event itself unlikely to continue or recur, a tribunal may find it not likely to recur (Singh LJ at [95]). The passage concerns recurrence; it does not decide the 'likely to last 12 months' limb, to which it applies only by analogy.
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Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Unfair dismissal; Polkey; disability; endometriosis. The EAT (HHJ Tayler) allowed the claimant's appeal. On Polkey, the reduction is assessed on what the employer would or might have done had it had the opportunity to remedy the defect that made the dismissal unfair. The onus is on the respondent: the tribunal erred by asking what it would have done itself rather than requiring the respondent to prove what it would have done [79]-[83]. On disability, the reasoning was wholly inadequate to show the tribunal had analysed the evidence. Having formed an adverse view of the claimant's credibility it ignored her impact statement, recited an unattributed generalisation about endometriosis, and failed to engage with the occupational health and consultant evidence or with whether recovery from surgery was itself an adverse effect [100]-[104]. The s.15 finding fell with it [113]-[114]. Remitted to a fresh tribunal [115].
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.