To be a 'disability' within the Equality Act, the substantial effects of an impairment must be 'long-term'. This means broadly at least 12 months.
- To be a 'disability' the substantial effect must normally
- have lasted 12 months, or
- it could well last 12 months from when it started.
- The test is also met if the substantial effect could well re-occur outside the 12 month period.
- Sometimes effects apart from communciation (eg other effects of a stroke) may mean that the person has a disability anyway.
12 month test
If the substantial effects on normal day-to-day activities have already lasted 12 months when the discrimination happened, the effects are 'long-term' and the impairment can count as a disability.
If the effects have not yet lasted 12 months at the time of the discrimination, the question is normally whether they are 'likely' to last 12 months from when they started (EqA Sch 1 para 2). 'Likely' here does not mean more probable than not. All that is needed is that the effects 'could well' last 12 months from when they started (SCA Packaging v Boyle).
To cover the situation of someone who may well die within the 12 month period, it is also enough if the substantial effects could well last the rest of the person's life.
The likelihood is assessed as at the time of the alleged discrimination. It does not matter that at the time of the tribunal hearing it may be known whether or not the substantial effects lasted a year.
Example: aphasia following a stroke
A woman is left with aphasia following a stroke. She was initially unable to speak or write at all. Six months later when she is discriminated against, she has made some improvement but still has significant difficulties. In looking at whether the 'long-term' requirement is met, the question is whether the effects on normal day-to-day activities 'could well' still be substantial (ie more than minor or trivial) 12 months after the stoke. This is assessed as at the six month point, when the discrimination happened.
Say that following the stroke she also has substantial difficulty walking which could well last at least 12 months (or that the stroke has other substantial long-term effects). She will have a 'disability' anyway because of the other impairment(s). However, what if the discrimination is particularly related to the aphasia but there is doubt whether the aphasia itself is long-term? In other words, there is doubt whether the substantial effects of the aphasia itself 'could well' last 12 months, but other substantial impairments from the stroke meet the 'long-term' requirement. It may be that the aphasia would be protected under the Equality Act because of the long-term substantial nature of the related impairments overall (Ginn v Tesco Stores Ltd, UKEAT/0197/05; Patel v Oldham Metropolitan Borough Council, UKEAT/0225/09 (link to bailii.org).
Substantial effects are treated as ongoing if they have stopped (or are currently not 'substantial') but are likely to happen again in future (EqA Sch 1 para 2(2)). So if substantial effects ceased within 12 months but 'could well' happen again in future, beyond the 12 months, they will be treated as ongoing and the impairment will be 'long-term'.
Comments on communication impairments
Many communication impairments started in childhood, and are clearly long-term when one has reached adulthood. Here the 12 month test will have been satisfied long ago. Examples include most stammering, and specific language impairment (SLI).
The issue of whether or not the impairment is 'long-term' is likely to arise if the communication impairment starts in adulthood, for example aphasia as a result of a stroke (but see above on it being combined with other disabilities). The question can also arise for 'late onset' stammering. To be a disability within the Equality Act these will need to satisfy the '12 month' test (which can include any likelihood of future reoccurence).
Whether the impairment is long-term will often tie in with whether effects are 'substantial', because it must be 'substantial' effects which have lasted 12 months, or which could well last that long.