Recurrence of Illness

Employment Law – Likelihood of Recurrence of Illness – Disability Discrimination

A recent case dealt with issues relating to the assessment of the likelihood of a disability recurring at the date at which a discriminatory act in the workplace occurs. In the case of McDougall v Richmond Adult Community College [2008] the Court of Appeal held that the likelihood of the recurrence of a disability must be assessed at the date of the act of discrimination. Subsequent events cannot be taken into account when making that assessment.

The employee in this case, Ms McDougall had a job offer withdrawn once medical evidence revealed she suffered from a mental illness. Even thought the condition was diagnosed as being life-long, she had not suffered an episode of her illness for about three years at the time she made the application for the position.

Unfortunately, however, a short while after the job offer was withdrawn she suffered a relapse. She was subsequently committed to a hospital under the Mental Health Act. The Employment Appeals Tribunal held that when deciding whether an employee’s impairment has a long-term effect, tribunals should carefully consider all the information available at the date of the hearing. The tribunal’s considerations should not be restricted to asking what the likelihood of recurrence was at the date of the discriminatory act.

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© RT COOPERS, 2008. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.