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Disability must be established at date of each discriminatory act
Tesco Stores Ltd v Tennant
In a disability discrimination claim the existence of a disability must be established at the date of each discriminatory act upon which a claimant relies.
Mrs Tennant worked as a checkout manager for Tesco. From September 2016 she was off sick with depression for extended periods. On 11 September 2017 she brought a claim of disability discrimination, harassment and victimisation relying on various acts from September 2016 onwards. She contended that her depression amounted to a disability, i.e. it was an impairment which had a substantial and long-term adverse effect on her ability to carry out day-to-day activities. An effect is considered ‘long term’ if it has lasted 12 months, is likely to last for 12 months or is likely to last for the rest of that person’s life (Sch. 1, para 2(1) of the Equality Act). ‘Likely’ means ‘could well happen’.
At a preliminary hearing the employment judge held that her disability had lasted for at least 12 months and she was therefore disabled. There was no evidence that her depression was likely to last more than 12 months or for the rest of Mrs Tennant’s life. Tesco appealed.
The appeal was allowed.
As at any of the relevant dates, (the allegedly discriminatory acts between September 2016 and September 2017), Mrs Tennant’s impairment and the adverse effects of it had not yet lasted for at least 12 months and there was no evidence before the tribunal that it was likely to last for 12 months – so she wasn’t disabled at the relevant time.
The relevant time, the period of 12 months, coincided with the 12 months during which Mrs Tennant’s impairment was producing the relevant effect. However, what must be examined is what is happening at the date of the discrimination, i.e. at that date has there been 12 months of effect or is there likely to be? The EAT substituted a finding that Mrs Tennant was disabled from 6 September 2017.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2019/0167_19_1911.html
If Mrs Tennant had a prognosis in September 2016 which said that her depression was likely to last for more than 12 months, then she would have been considered disabled. However, it appears that she did not or if she did, it was not relied on before the tribunal.
One of the difficulties for companies is that when they send their employees to occupational health, OH will often err on the side of caution when asked the question whether this employee is likely to be covered by the Equality Act 2010 and will answer yes. In those circumstances it is easy to see a tribunal interpreting this as a prognosis that it is likely to last for 12 months or more and so the employee considered to be disabled a long time before they get to the 12 months.