In the recent case of Tesco Stores Ltd v Tennant the Employment Appeal Tribunal (EAT) held that, in order to bring a successful disability discrimination claim, an employee must demonstrate that impairment had a ‘long term effect’ at the time the alleged acts of discrimination took place.
Ms Tennant was employed by Tesco Stores Ltd (“Tesco”) as a check out manager. She was absent from work as a result of depression from September 2016. In September 2017 she brought a claim for disability discrimination in relation to discriminatory acts which she allegedly suffered in the period between September 2016 and September 2017. Amongst other things, the Employment Tribunal had to consider if Ms Tennant was disabled under the Equality Act 2010 (“the Act”) and, if so, whether she was disabled at the time of the alleged discriminatory acts.
In order to meet the definition of disability under the Act Ms Tennant had to demonstrate that her impairment was long-term. An impairment will be deemed long term if: (i) it has lasted for at least 12 months, (ii) it is likely to last for at least 12 months; or (iii) it is likely to last for the rest of the person’s life. Ms Tennant argued that her disability had lasted more than 12 months. It appears no evidence was presented about how long, at any particular time during this period, her disability was likely to last.
The Tribunal concluded that Ms Tennant’s depression was an impairment which had a substantial adverse effect on her ability to carry out normal day to day activities. It also found that the impairment was long-term because it had had a substantial effect on her from September 2016.
Tesco appealed on the basis that Ms Tennant was not disabled at the time of the alleged discriminatory acts.
The Employment Appeal Tribunal (EAT) agreed with Tesco. It held that the definition of disability had to be satisfied at the time the alleged discriminatory acts took place and not when the claim was submitted. It could not be said that Ms Tenant’s impairment and its effects were “long term” as they had not lasted for at least 12 months prior to September 2017. In the absence of evidence of Ms Tennant’s prognosis there was no basis to hold that her impairment was likely to last 12 months.
Conclusion This case is a useful reminder of the importance “the long-term” effect plays in a disability discrimination claims. The fact that an employee is disabled does not automatically mean that they can argue disability discrimination or harassment in relation to historic acts as it is possible that they were not disabled at the time the alleged acts had occurred. However this case was unusual in that there was no evidence of prognosis or likely duration.