Tesco v Tennant - Discrimination: 'long-term effect' of disability

The Employment Appeal Tribunal (EAT) has ruled that, when bringing a claim of disability discrimination, a claimant must show that their condition has a ‘long-term effect’ at the time of the alleged acts of discrimination.

he Equality Act 2010 makes it unlawful to discriminate against an individual, directly or indirectly, due to their having a disability. The Act also prohibits victimisation, which is where an individual is subjected to a detriment as a direct result of bringing a complaint of discrimination.

In order to be disabled for the purposes of the Act, a person needs to meet the definition of having a physical or mental impairment. This impairment must also have a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.  An impairment is considered ‘long-term’ if it has lasted for at least 12 months, is likely to last for at least 12 months or likely to last for the rest of the life of the individual.

FACTS

This case concerned a claimant who had worked for the organisation for ten years. In September 2016, she took extended periods of time off work as a result of a diagnosis of depression. Between September 2016 and September 2017, she claimed she experienced acts of discrimination and victimisation from the organisation and therefore brought claims to the employment tribunal (ET).

ET

Before the tribunal could hear if the alleged acts of discrimination should be considered as such, they first needed to determine if the claimant was actually considered disabled for the purposes of the 2010 Act. They therefore held a preliminary hearing, in which medical records of the claimant’s condition were presented and, during which, she was also invited to give evidence.

Ultimately, the ET found that the claimant’s condition met the definition outlined in the Act, meaning she was disabled. They concluded that the claimant’s depression was an impairment that had had an adverse effect upon her from September 2016. As she had still been suffering from it 12 months later, it met the requirement to be considered ‘long-term’. The organisation appealed against this decision to the EAT.

EAT

The EAT upheld the appeal, outlining that the tribunal had been ‘plainly wrong’.

It held that it was necessary for the claimant to satisfy that her condition met the definition of disability at the time of the discriminatory acts and not at the time in which she submitted her claim in September 2017. Whilst she was able to show that her condition had lasted for 12 months by this time, she was unable to demonstrate this prior to that date. Therefore, any acts of alleged discrimination in this period could not be classed as such as the claimant could not be considered disabled then.

The EAT also refused a remission to the tribunal to determine whether the claimant could argue that her condition was likely to last 12 months in the period between September 2016 and September 2017. This was because she had already presented this argument to the tribunal, who had considered it and, ultimately, not upheld it. The judge had stated that there was no evidence presented to him that showed the effect of her impairment was likely to last for 12 months at the time, or for the rest of the life of the claimant. Therefore, as she had already made this argument, the EAT felt it would not ‘be right’ to allow her to raise this point again.

Notes for employers

This ruling reminds organisations that it is for a claimant to demonstrate that they are disabled for the purposes of the Equality Act 2010, and the definition that they will need to meet in order to have this label. Once this is established, it is also for the claimant to then demonstrate that they have been subjected to discrimination.

That said, organisations should still proceed with care when faced with an employee who has a condition that could potentially be considered a disability. If a claimant can demonstrate that their condition is likely to last for a period of 12 months even if it has not yet done so, this could still lead to a costly discrimination claim for an organisation. In this case, the claimant was ultimately unsuccessful because she had presented no evidence to establish the likelihood of this, but this does not mean another claimant in a similar position would not be able to.

Organisations should also remember that some conditions when diagnosed are automatically considered disabled under the Act. These are HIV, cancer and multiple sclerosis. 

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