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Whether an employee is disabled must be assessed at point acts of alleged discrimination occurred
Adrian Fryer
To bring a claim for disability discrimination, an employee must be able to show that they (or someone they are associated with) is disabled. At what point in time is an assessment of disability made? In Ahmed v DWP, the Employment Appeal Tribunal held that the tribunal had erred by assessing whether the Claimant was a disabled person using a three-day date window. The discrimination allegations spanned several years.
The Claimant had a period of absence from work in September 2020. He alleged that this absence was owing to his health conditions (a blood disorder called PNH and, separately, depression). He alleged various acts of disability discrimination arising from this absence, spanning 2020, 2021 and 2022 and culminating in his dismissal.
It was accepted by the parties that PNH was a disability. Whether depression was a disability remained a live issue. A preliminary hearing was held. The tribunal assessed the position for the impairment of depression between 22 and 25 September 2020. It found that the Claimant was not disabled by reason of depression in that window.
The Claimant appealed. The EAT held that, whilst the three-day date window used by the tribunal to assess whether the Claimant’s depression was a disability was the correct window for one of his claims (discrimination arising from a disability) – it was too narrow for all of the others. The relevant time for assessing disability is the date of alleged discriminatory acts – these took place on occasions over several years, not three days.