Employers can't judge disability on future events, says court

In a case which examined the basis on which an employer's decisions are judged to be discriminatory or not, the Court said that the decisions must be looked at in the context of the information available at the time. Subsequent medical relapses, for example, must not be used as post-hoc justifications.

Elizabeth McDougall applied for a job at Richmond Adult Community College, which she got pending the results of a medical examination. She was then told that the job offer was withdrawn because of a lack of medical clearance.

In an Employment Tribunal case she claimed discrimination under the Disability Discrimination Act (DDA). McDougall was found by the Employment Tribunal to have a mental impairment, "delusional disorder, with a differential diagnosis of schizo-affective disorder".

She had previously suffered from the condition in 2001 and 2002, but the job application was made in 2005 and McDougall's doctor proclaimed her fit for work.

The DDA has a clause specifically dealing with past illnesses which might recur. "Where an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur," it says.

The Employment Tribunal found that it she was not entitled to protection under the DDA because "she was not disabled and her claims for disability discrimination fail and are dismissed".

The EAT reversed that ruling, and took further evidence into account. After being told of the withdrawal of the job offer, McDougall suffered a relapse. The EAT took this into account when assessing her condition, even though it took place after the employer decision which was the basis of McDougall's claim.

"In determining whether or not a condition is likely to recur for the purposes of the assessment of disability under the 1995 Act, it is relevant to consider not only those matters extant at the date the tort was committed, but those occurring up to the date of the hearing," the EAT said.

"What is being assessed is the mental impairment as at the date of the statutory tort seen in the light of subsequent events … it is unattractive and possibly inoperable for them [Employment Tribunals] to be expected to ignore the reality of what has occurred so as to found a judgment on what might have occurred".

This interpretation was rejected by the Court of Appeal in a ruling by Lord Justice Pill. He said that an employer's actions must be judged in the context of what was known at the time, not with the benefit of hindsight.

"The decision … is inevitably taken on the basis of the evidence available at that time," said Pill. "In my judgment, it is 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 has been established."

"The central purpose of the Act is to prevent discriminatory decisions and to provide sanctions if such decisions are made. Whether an employer has committed such a wrong must, in my judgment, be judged on the basis of the evidence available at the time of the decision complained of," he said.

The ruling clears up confusion caused by conflicting past judgments from the EAT. Pill listed several rulings which contradicted each other. Employment lawyer Ben Doherty of Pinsent Masons, the law firm behind OUT-LAW.COM, said that employers will welcome Pill's clearing up of what the law means.

"It is an important ruling because the case law from tribunals before this was confused, with some tribunals going one way, some the other," he said.

"This helps to clarify the situation because it is the first court of appeal decision," said Doherty. "It makes it very clear to employers that their decisions will be judged on the basis of the information they had at the time, and not on what happened subsequent to any decision they made."

Pill said that the case was not one which turned on the particular facts, it was simply a question of the correct reading of the law.

"Both parties have sought to argue that the construction favoured by the other is unfair to one or other party, or is unworkable," he said. "I do not consider that the examples given help to resolve what in my judgment is a question of statutory construction."

Though the ruling will give clarity to employers, it cannot give certainty. "This doesn't actually change the basis on which employers make decisions – they always had to act, in the words of the judge, as 'prophets'," said Doherty.