Court rules disability must be established at the time of “discriminatory” acts

Mental health conditions can be debilitating, impacting all aspects of a person’s life, including their ability to work.

For employers, dealing with the operational consequences can be difficult, and if the employee’s condition qualifies as a disability, there’s also potential for legal action.

In 2019, the average award for disability discrimination was £28,371 – higher than the average award for any other type of Employment Tribunal claim. With so much at stake, employers are understandably anxious about the consequences of mismanaging an employee’s condition.

However, in order to rely on legal protection, an employee’s condition must qualify as a disability. To do so, a person’s mental or physical impairment must have a “substantial and long-term effect on his or her ability to carry out normal day-to-day activities”. Even then, a recent case has shown that in order for a claim to be successful, an employee’s condition must be established as a disability at the time of the alleged discriminatory acts.

Tesco Stores Ltd v Tennant

The claimant in this case, Ms Tennant, was employed by Tesco as a checkout manager. Between September 2016 and September 2017, Ms Tennant suffered with depression, which caused her to be off sick for extended periods. In September 2017, she brought claims for disability discrimination, harassment and victimisation as a result of the treatment she received over the previous 12 months.

Before deciding whether discrimination had occurred, a preliminary hearing was held to determine whether Ms Tennant’s mental health issues amounted to a disability. If not, the claim could go no further. The question here was whether Ms Tennant’s condition was “substantial and long term”.

The “substantial” aspect of this test was not disputed. The Tribunal then turned to the question of whether or not Ms Tennant’s impairment could be said to be “long term”. Under the Equality Act 2010, the effect of an impairment is considered long term if:

(a) It has lasted for at least 12 months;

(b) It is likely to last for at least 12 months; or

(c) It is likely to last for the rest of the person’s life.

Preliminary hearing and EAT decisions

In the first instance, the Tribunal held that as Ms Tennant’s mental health issues had a substantial adverse effect on her for the 12 months between September 2016 and September 2017, she was considered to be disabled throughout the whole of that period. In other words, the time in which the alleged discriminatory treatment occurred coincided with the 12 months during which the impairment was producing the relevant effect.

However, when Tesco appealed, the Employment Appeal Tribunal (EAT) disagreed with the Tribunal’s interpretation.

In the EAT’s view, during the period in question, Ms Tennant’s impairment and the effects thereof had not yet lasted 12 months. There was also no indication that her depression was likely to last for at least 12 months (or indeed the rest of her life). As such, she was not considered disabled at the relevant time.

Somewhat strangely, the Employment Judge for the preliminary hearing appeared to recognise this fact, stating that: “The time at which to assess the disability, i.e. whether there is an impairment which has a substantial adverse effect on normal day-to-day activities) is the date of the alleged discriminatory act. This is also the material time when determining whether the impairment has a long-term effect.” However, despite this, he had arrived at the wrong conclusion.

Ultimately, Judge Shanks confirmed in the EAT judgment that “one has to look at what is happening at the date of the act of discrimination or harassment which one is addressing, and one has to ask whether, at that date, there has been 12 months of effect.” If there has not, then disability will not be established, and the claimant’s claim will fail. As such, the EAT substituted the Tribunal’s earlier decision and Tesco’s appeal was allowed.

James Tamm

Director of Legal Services

Expert Comment

To a lay person, this may seem like a strange result given that, at the point the claim was started, Ms Tennant appears to have had her condition for at least 12 months. However, the question of long-term effect needs to be asked at the point of each alleged discriminatory act. At that point in time, a judgment needs to be made about whether the condition was likely to last 12 months. The evidence here did not seem to support that.

Whilst this offers some clarification and comfort to employers, in my own experience, the Tribunal will often show a fair degree of latitude to employees with medical conditions. Of course, it is necessary to question whether a particular condition meets the definition of disability, but this is generally not a high bar for a claimant to overcome. As a result, employers should equally focus on the issue of objective justification, particularly in relation to claims for failure to make reasonable adjustments and those for discrimination arising from a disability.

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