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Case update (1): Disability discrimination – It’s all in the timing

Summary:  Can employees succeed in a discrimination claim in relation to acts which occur before their condition amounts to a disability?

No, says the EAT in Tesco Stores Ltd v Tennant, available here.

Background:   A physical or mental condition only amounts to a disability under the Equality Act 2010 if it “has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities“.  The definition of “long term“ means that the condition must either: (a) have lasted 12 months; or (b) is likely to last 12 months.

Facts:  Mrs Tennant, the employee, was a Checkout Manager at Tesco, the employer. Mrs Tennant went off sick with depression for extended periods from September 2016. On 11 September 2017 she brought a claim of disability discrimination, harassment and victimisation relying on acts from September 2016 onwards.

The Tribunal found that Mrs Tennant’s claims could proceed because she had been suffering from a disability throughout the relevant period (i.e. since September 2016).

Importantly in this case, the Tribunal made its decision on the basis that the depression had actually lasted 12 months, because there had been no evidence put forward by the employee on which the Tribunal could find that her condition was ‘likely to’ last a year at the time of the alleged discriminatory acts.

The employer appealed to the EAT arguing that disability had to be established at the time of each of the relevant acts.  As it was only established at the end of the 12 month period on 6 September 2017, the employee was not protected in respect of any allegedly discriminatory acts before that date.

The EAT allowed the employer’s appeal.  It held that the correct approach was to consider whether the employee was disabled for the purposes of the Equality Act at the time of the events complained of. In this case Mrs Tennant’s depression had only lasted for 12 months at the start of September 2017, and there was no evidence before the Tribunal that it was likely to last for 12 months at any stage before this date. Mrs Tennant’s depression only qualified as a disability in September 2017 and she could not bring a disability discrimination claim in relation to a period before it did so.

Implications: This is a useful reminder that in order to bring a successful discrimination claim, disability must be established at the date of each of the discriminatory acts relied on.  Meeting the definition of disability in some sort of general sense at some point is not adequate for the purposes of bringing a disability discrimination claim.

Employers and their advisors should look at what is happening at the date of the relevant act of discrimination and ask whether, at that date, the employee’s condition meets the test for disability and also if there is evidence that the condition has already lasted 12 months, or is likely to last 12 months.

What this decision does not do is legally permit employers to ignore an employee’s condition because it has not yet lasted 12 months.  In this case, if Mrs Tennant had a prognosis (e.g. from Occupational Health) in September 2016 which said that her depression was likely to last for more than 12 months, then it is likely she would have been considered disabled.


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