Taking a long term view

McDougall v Richmond Adult Community College (2007, IRLR 771)

To be protected under the DDA, claimants have to show their impairment is long term. In McDougall v Richmond Adult Community College (2007, IRLR 771), the Employment Appeal Tribunal (EAT) held that tribunals should use all the information they have, even if it post dates the alleged discrimination, when deciding that question.

Basic facts

Ms McDougall had a history of mental health problems stemming back to the 1990s. After several periods of depression, she was sectioned under the 1983 Mental Health Act (MHA) for several months in late 2001.

In March 2005, she applied for and was offered a job with the college as a database assistant, subject to references and health clearance. However, the college withdrew the offer at the end of April 2005 on the ground that she was not medically fit to work. Ms McDougall claimed disability discrimination. She then had a relapse in August 2005 and was sectioned again in December.

Relevant law

Section 1(1) of the DDA states that to be protected under the Act, claimants must have “a physical or mental impairment which has a substantial and long-term adverse effect on his [or her] ability to carry out normal day-to-day activities”.

Schedule 1 of the Act states that the effects of an impairment are considered “long-term” if they have lasted at least 12 months, are likely to last at least 12 months, or likely to last for the rest of the person’s life. If an impairment ceases to have a substantial adverse effect, it is still treated as though it has that effect if it is likely to recur.

Tribunal decision

The tribunal found that Ms McDougall had a mental impairment within the meaning of the DDA, but that she was not disabled under the Act because at the time of the alleged discrimination, there was no evidence that her persistent delusional disorder was likely to recur.

Noting that the effects of her disorder had lasted no more than eight months, she could not show that she was suffering from an impairment that had a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities.

EAT decision

The EAT said that just because Ms McDougall had been sectioned under the MHA did not automatically mean that she should be treated as disabled under the DDA – there was no automatic read-over. However, in this case, the severity of her delusions was so substantial and adverse that she clearly qualified as having “an impairment of her ability to understand”.

It went on to note that anyone who has been detained in a mental institution was unlikely to be able to carry out their day-to-day activities, for the simple reason that they were not at liberty to do so.

In assessing whether her condition was likely to recur (to decide whether her impairment had a long-term effect), the EAT then looked at whether the tribunal had been right to ignore Ms McDougall’s relapse in August 2005.

Relying on the principle established in Bwllfa and Merthyr v Pontypridd Waterworks Company (that courts and tribunals should use all the information they have at the time of making the award, not just what was known at the time of the alleged breach), the EAT said this applied equally to the DDA.

Tribunals, it argued, have to take a practical approach when assessing disability, and should not be “expected to ignore the reality of what has occurred so as to found a judgment on what might have occurred.” This tribunal, however, had failed to do that.

It concluded that “a condition which is persistent is by definition not finite, sporadic or intermittent. In April 2005 it was a feature of this persistent condition that it was highly likely to recur.”

The EAT therefore allowed the appeal.