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 She was then told that the job offer was withdrawn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.
