EAT confirms employee must show the effect of their impairment is 'long term' at the time of the discriminatory acts.
Under the Equality Act 2010 ('the Act') a person has a disability if they have a physical or mental impairment and the impairment has a substantial, long-term, adverse effect on their ability to carry out normal day-to-day activities.
Paragraph 2 of Schedule 1 of the Act ('Para 2') adds that an impairment is long-term if (a) it has lasted 12 months or (b) it is likely to last for at least 12 months, or (c) it is likely to last for the rest of the life of the person affected.
Case details: Tesco Stores Limited v Mrs C Tennant
Mrs Tennant was employed by Tesco as a checkout manager. She went off sick for extended periods from September 2016 as a consequence of depression. A year later, she brought proceedings against Tesco alleging disability discrimination, harassment and victimisation. The acts relied on were alleged to have occurred between September 2016 and September 2017.
At a preliminary hearing an employment judge found Mrs Tennant had suffered depression, which was an impairment that had a substantial effect on her, from 6 September 2016. The judge then determined that because the effect lasted for a period of 12 months through to September 2017, she was suffering a disability during the whole of that period under Para 2(a). For this reason she was disabled for the purposes of the Act from 6 September 2016.
The EAT confirmed that the employment judge's application of Para 2(a) was wrong. The correct interpretation is that the employee must have had an impairment for 12 months or more to be disabled under that section. This means that disability claims can only be brought under that section for acts which occur after that 12 month period.
Accordingly, the EAT concluded that Mrs Tennant could only have been disabled for the purposes of Para 2(a) from 6 September 2017 and any acts prior to that date were not acts of disability discrimination under the Act.
Whilst the EAT's decision appears obvious on the face of it, this case highlights the potential confusion that the definition of disability in the Act can produce and it was noted that no there was no legal authority on the specific interpretation of Para 2(a) to guide the tribunal.
It is possible that the judge may have been 'creative' in his interpretation of Para 2(a) in an effort to help Mrs Tennant continue her claim, as it appears she did not bring evidence to show that her condition was likely to last 12 months at the time of the alleged acts. Had Mrs Tennant done so, the judge may have been able to find that Para 2(b) or (c) applied, on the basis that the condition was likely to last for at least 12 months.
Employers should not take comfort from this case when dealing with employees who have started suffering with an impairment which could be a disability. It is possible that an employee will be able to bring evidence to show that their impairment was likely to last for 12 months at the time of the alleged discrimination. As Mrs Tennant did not bring a cross-appeal in the EAT to argue that her impairment was likely to last 12 months at the relevant dates, the EAT could not consider this argument.
Whilst an employee may still be many months away from gaining protection under Para 2(a), employers need to proactively find out more information about the employee's condition once they are on notice that the employee might be disabled for the purposes of the Act. If evidence, including reports from health professionals, indicates that at employee's impairment has lasted or is likely to last for at least 12 months, it is important to ensure that reasonable adjustments are made. Employers should also ensure that any unfavourable treatment of the employee because of something arising from their disability (for example the management of any performance issues) is justifiable in the circumstances.
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