On the day

McDougall v Richmond Adult Community College

To be protected under the Disability Discrimination Act (DDA) 1995, claimants have to show their “impairment” is long term. In McDougall v Richmond Adult Community College, the Court of Appeal held that when deciding whether an impairment is long term or not, tribunals should only rely on information available at the time of the allegedly discriminatory act.

Basic facts

Mrs 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 until early 2002.

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”.

Paragraph 2(2) of 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 and EAT decisions

The tribunal found that Ms McDougall had a mental impairment but that she was not disabled under the Act because it had not lasted at least 12 months. It said that the episode which ended in February 2002 had lasted no more than eight months, and as she could not point to any evidence to demonstrate that she was likely to suffer a recurrence (it ignored the relapse in August) her claim failed.

The EAT held that 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) applied equally to the DDA. As her impairment had, in fact, recurred by the date of her tribunal hearing, the tribunal should have taken that into account.

Court of Appeal decision

The Court of Appeal, however, disagreed with the EAT. It emphasized that schedule 1 of the Act allowed for an impairment to be treated as having a long-term effect if that effect was “likely to recur”.

In making that assessment, employers could only rely on the evidence they had before them at the time of making their decision. Tribunals should, therefore, also make their decisions on the same basis.

“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.”

It said that the Bwilfa principle relied on by the EAT only applied to a question of damages and not liability.