Disability status at the time of the discriminatory act

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All Answers Ltd v W and R

A person is disabled under the Equality Act 2010 where they have an impairment which has a substantial and long-term adverse effect on their ability to carry out day-to-day activities. ‘Long-term’ for this purpose means that the impairment has lasted or is likely to last at least 12 months. By the time a claim for disability discrimination is heard in the Employment Tribunal it might be clear that the impairment has lasted that long but that will not always answer the relevant question as was confirmed in the recent case of All Answers Ltd v W and R

The employer disputed that the two claimants were disabled

The two claimants worked in an office and sat close to each other. On 21 August 2018 their seats were moved so that they were further apart. They complained about the move which they said left them feeling isolated. Mr R was given an informal warning. Both employees brought claims which included disability discrimination. They submitted that they were both suffering from depression and had relied upon each other for support. The employer disputed that they were disabled.


At a preliminary hearing an employment judge found that they were disabled taking into account evidence of how their impairment continued to have an impact on them. However, the employer appealed that decision and the case proceeded to the Court of Appeal which has overturned the decision. It held that the issue that needed to be decided was whether the adverse effect of the mental impairment was likely to last for at least 12 months as at August 2018, the date of the alleged discriminatory acts. 

Key point

The decision confirms that disability has to be established as at the time of the act which is the subject of the complaint not at the time the hearing is taking place. Events that occurred after the date of the alleged discrimination should not be taken into account to determine whether at that time the effect was likely to last for 12 months. This could be particularly relevant considering the potential for claims of disability discrimination that relate to ‘long Covid’ given that little is still known about its likely duration.

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