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    Disability needs to be ‘long term’ at the time of mistreatment under Equality Act 2010

    Disability needs to be ‘long term’ at the time of mistreatment under Equality Act 2010

    The recent Employment Appeal Tribunal (EAT) case of Tesco Stores Ltd v Tennant UKEAT/0167/19/00 has confirmed that when claiming disability discrimination, a claimant must show that their condition had a "long-term effect" at the time of the alleged acts of discrimination.

    A reminder of the legal test

    In order to satisfy a disability discrimination claim under the Equality Act 2010, a claimant must show that they have a physical or mental impairment which has a substantial effect on their normal day-to-day activities and which is long term. The effect of impairment is ‘long-term’ if:

    1. it has lasted for at least 12 months;
    2. it is likely to last for at least 12 months; or
    3. it is likely to last for the rest of the person’s life
     

    Background

    Mrs Tennant worked for Tesco since 2005. She was intermittently absent from work from September 2016 onwards due to depression.

    A year later, on 11 September 2017, Mrs Tennant brought an Employment Tribunal claim on the basis of disability discrimination, harassment and victimisation. The acts on which she relied were all dated between September 2016 and September 2017.

    A preliminary hearing to determine disability took place in December 2018. The Employment Tribunal (ET) found that Mrs Tennant's depression was an impairment that had had an adverse effect from 6 September 2016. Given that she was still suffering from depression 12 months later, the ET found that the definition of disability under the EqA was satisfied. Tesco appealed to the EAT asserting that the effects of Mrs Tennant's impairment were not “long-term” (either lasting for 12 months or more, or likely to do so) at the dates of the various acts of alleged discrimination or harassment.

    EAT Decision

    The EAT agreed with Tesco and substituted the original findings of the ET so that Mrs Tennant could only be regarded as being disabled from 6 September 2017 (i.e. 12 months after the impairment started). Mrs Tennant was therefore only able to bring claims from 6 September 2017 until 11 September 2017 (when the claim was presented).

    Comment

    In many ways a common-sense ruling, this case is helpful for situations where the length of an employee’s impairment is uncertain. However, this is unlikely to be the situation in many disability related cases. Employers should therefore be cautious of using this case as an authority to support their actions where they have not sought evidence around the likely length of an individual's impairment.

    Should you suspect that an individual may be disabled (indeed it is no bad thing to adopt the view that a person is disabled from the outset until proven otherwise, for the purposes of staying the right side of the law), then it is important that you seek at an early stage appropriate medical (and legal!) advice and then to document any decision made regarding disability, including the reasons why you do not believe the definition is met. This should then be regularly reviewed throughout the next 12 months (and where necessary beyond).

    Should the topics discussed in this case report prompt any queries then do not hesitate to contact the Employment Law Team.

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