In McDougall v Richmond Adult Community College [2008] EWCA Civ 4, the Court of Appeal has held that the likelihood of the recurrence of a disability must be assessed at the date of the act of discrimination, and that subsequent events cannot be taken into account.

Ms McDougall had a job offer withdrawn after medical evidence revealed she suffered from a mental illness. In fact, while the condition was lifelong, she had not suffered an episode of her illness for three years at the date of her job application. However, shortly after the job offer was withdrawn, she suffered a relapse and was committed to hospital under the Mental Health Act.