Last reviewed 26 February 2020

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. Ben McCarthy, employment law writer at Croner-i summarises a recent case.

Tesco v Tennant

The 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 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 have a physical or mental impairment. This impairment must 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, or is likely to last for at least 12 months, or for the rest of the life of the individual.

Background

This case concerned a claimant who had worked for the employer for 10 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. Therefore, she brought claims to the employment tribunal.

Employment tribunal

The tribunal needed to determine if the claimant was actually disabled for the purposes of the 2010 Act. If she was not, the claim would be null. In the preliminary hearing, the medical records of the claimant’s condition were presented, and the employee was also invited to give evidence. Ultimately, the tribunal found that the claimant’s condition met the definition outlined in the Act, meaning she was disabled.

It concluded that the claimant’s depression was an impairment which 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.

Employment Appeal Tribunal (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.

The claimant was able to show that her condition had lasted for 12 months by the time of the claim. However, she was unable to demonstrate this prior to the claim. Therefore, any acts of alleged discrimination in this period could not be classed as such, because the claimant could not be considered disabled then.

The EAT also refused a remission to the tribunal. This was requested 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. However, she had already presented this argument to the tribunal. They had considered it and, ultimately, not upheld it. The judge had stated that there was no evidence presented which showed that 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.

Summary

This ruling reminds organisations that the claimant must be able demonstrate that they are disabled. It is also the claimant’s responsibility to demonstrate that they have been subjected to discrimination. If a 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.

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