How to judge whether a condition is long-term for disability purposes

Tesco Stores Ltd v Tennant UKEAT/0167/19/00

Why care?

Where employees bring claims for disability discrimination and adduce medical evidence of ill-health that is capable of amounting to a disability, employers often concede that the employee has a disability. Anecdotal evidence suggests that it is relatively rare for employers to take issue with this and put the employee to strict proof that they suffer from a disability. However, it is worth bearing in mind that if your organisation is being sued for disability discrimination, there may well be technical issues worth raising about whether the person actually suffered from a disability at the relevant time, that is at the time the alleged acts of discrimination took place. As the following case illustrates, even employment judges sometimes get the law in this area wrong.

The case

In Tesco Stores Ltd v Tennant, an employee went off sick with depression in September 2016 and brought claims for disability discrimination and harassment in September 2017. The events she complained about took place between September 2016 and September 2017, the period when her depression was having a substantial effect on her day to day activities. However, the EAT held that the employment judge had been wrong to find that she suffered a disability at the time of the alleged treatment. It was only from September 2017 that it could be said she was suffering from an impairment which had lasted 12 months.

The Equality Act 2010 defines a disability as an impairment which has a substantial effect on a person's ability to carry out day to day activities and has lasted 12 months or is likely to last 12 months. In this case, the way the employee pleaded her case meant that she could not rely on the alternative definition; she had not adduced medical evidence that her condition was likely to last 12 months.

What to take away

This case should not give employers a false sense of security, that they are immune from disability-related allegations until a person has been suffering a serious health condition for at least 12 months. However, it is a reminder that in order to enjoy protection, employees need to meet the definitions under the Equality Act 2010 and employers should not assume that all the hurdles rest on their side when it comes to litigation.

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