The law says that to qualify as a disabled person, claimants have to show (among other things), that their impairment had a substantial effect on them for at least 12 months or was likely to. In Tesco Stores Ltd v Tennant the Employment Appeal Tribunal (EAT) held that as Ms Tennant’s condition only had a substantial effect from 6 September 2017, this was the date when she became disabled, although most of the allegations occurred before then.
Basic facts
Ms Tennant, a checkout manager for Tesco from 2005, was off sick for extended periods from September 2016 because of depression. A year later, on 11 September 2017, she claimed disability discrimination and harassment and victimisation for acts that occurred between September 2016 and September 2017.
Relevant law
Section 6 of the Equality Act states that a person has a disability if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day to day activities.
The effect of the impairment is long-term if it has lasted for at least 12 months, is likely to last for at least 12 months or is likely to last for the rest of the life of the person affected.
Tribunal decision
At a preliminary hearing to decide whether Ms Tennant satisfied the definition of a disabled person within section 6, the tribunal judge found that she had suffered depression which was an impairment, and that it had had a substantial effect on her from 6 September 2016.
The only other issue to decide was whether the effects of that impairment could be said to be “long-term” during the time period Ms Tennant had relied on for her claim. In other words, between September 2016 and September 2017. The tribunal judge decided that it had had a substantial adverse effect on her for that whole 12-month period and that she was therefore a disabled person by the time of her claim in September 2017.
Tesco appealed arguing that the time to assess the disability (that is, whether there is an impairment which has had the requisite effect) is the date of the alleged discriminatory act. To satisfy a claim, workers therefore must be able to show that their impairment had already existed for at least 12 months before the alleged act took place. That meant Ms Tennant could only bring claims from 6 September 2017 as her depression started in September 2016. She would then only be able to bring claims arising from facts in the relevant period between 6 September 2017 and 11 September 2017.
EAT decision
The EAT upheld Tesco’s appeal on the basis that in this case the tribunal needed to look at what was happening at the date of the act of discrimination that was being addressed and ask whether, at that date, the effect had lasted for at least 12 months. This was because Ms Tennant had not shown that the impairment was, at the relevant time, likely to last 12 months or more.
Therefore, as the judgment was that Ms Tennant was disabled from 6 September 2016 it could not be said that the effect of the impairment of which she complained had lasted for at least 12 months until 6 September 2017. Accordingly, she could not be said to have been disabled from September 2016.
The EAT therefore substituted a finding that Ms Tennant was disabled from 6 September 2017, only a few days prior to the presentation of her claim on 11 September, which meant that it could not therefore succeed.
Comment
It is important to point out that this case applies a narrow approach to the assessment of whether the impairment is long-term, because the claimant appears not to have provided evidence that it was “likely” to last 12 months or more. Her attempts to re-open this avenue at the appeal were, on the facts of the case, rebuffed by the EAT.
We recommend that trade union reps therefore consider whether medical advice from the GP and Occupational Health is needed on how long the member’s condition is likely to last. Or perhaps the member already has received advice and needs to disclose it to their employer? If this evidence had been provided in this case, the outcome may have been different.