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Written by Brabners LLP
Under the Equality Act 2010 it is unlawful to harass or discriminate against somebody in the workplace in relation to their disability. Disability is one of nine “protected characteristics” covered under the Equality Act.
The legal definition of disability is set out in the Equality Act where it is stated that a person is disabled if they (a) have a physical or mental impairment and (b) if the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
In short, for the purpose of a disability discrimination claim, an individual must show that their impairment had a substantial and long-term effect at the time of any alleged acts of discrimination. The meaning of the words “substantial” and “long-term” continue to be the subject of topical debate. Nevertheless, the Equality act provides that the effect of an impairment is “substantial” if it is more than minor or trivial and “long-term” if it has or is likely to last at least 12 months.
In the recent case of Tesco Stores Ltd v Tennant the Employment Tribunal considered whether individuals can succeed in discrimination complaints that relate to acts occurring before an impairment actually satisfies the legal definition of a disability.
So what happened in this case? Read on to find out more!
Mrs Tennant was employed by Tesco from June 2005. From September 2016, she was off sick for substantial periods of time, as a result of her depression. In September 2017, she brought claims of disability discrimination, harassment and victimisation and she relied on a number of alleged discriminatory acts which took place between September 2016 and September 2017.
Mrs Tennant argued that her depression satisfied the legal definition of a disability; it was a mental impairment that had a substantial and adverse effect on her ability to carry out normal day-to-day activities and, at the point which she submitted her claim in September 2017, it was one which was long-term as it had lasted 12 months (September 2016 – September 2017).
A preliminary hearing to determine whether Mrs Tennant’s impairment amounted to a disability took place in December 2018. The Employment Tribunal found that Mrs Tennant’s depression was an impairment. The Employment Tribunal was also of the view that her impairment did indeed have an adverse effect at the time when the alleged discrimination took place (September 2016 – September 2017) and the Tribunal decided that Mrs Tennant’s disability satisfied the requirement to be “long-term” as of September 2016, because the disability was likely to last for 12 months (in light of the fact that she was still suffering from depression 12 months later (i.e September 2017)).
Tesco appealed the Employment Tribunal’s decision on the ground that the effects of Mrs Tennant’s impairment were not “long-term” at the relevant dates that the alleged discriminatory acts took place. The Employment Appeal Tribunal upheld Tesco’s appeal.
The Employment Appeal Tribunal decided that it was necessary to determine whether the definition of disability was satisfied at the time of the discriminatory acts, not at the time Mrs Tennant’s claim was submitted. Essentially, Mrs Tennant could show that her impairment had lasted for 12 months from September 2017, but there was no evidence prior to that date to show that it was likely to last for 12 months. This meant that she could not bring a disability discrimination claim in relation to a period before her impairment satisfied the definition of a disability. Accordingly, the Employment Appeal Tribunal decided that Mrs Tennant was disabled for only a few days prior to the presentation of her claim in September 2017 which meant that her claim in relation to alleged discrimination prior to that date could not succeed.
So what does this decision mean for employers and recruiters?
The decision in the above case is somewhat surprising given that the legislation provides that a person is disabled not only if they have had the impairment for 12 months, but also if the impairment is likely to last for 12 months. Nevertheless, the Employment Appeal Tribunal decided that there wasn’t sufficient evidence, prior to September 2017, that the impairment was likely to last for 12 months. This decision clarifies that, in order to be able to claim that acts are discriminatory, it is necessary to establish that, at the time they occurred, the individual was actually ‘disabled’.
However, employers and agencies should be cautious of placing too much reliance on the above decision. Each case will depend on its own facts and circumstances, and it could be risky to assume that, just because there is not clear evidence that an impairment is likely to last for 12 months, the individual is not disabled. We would recommend erring on the side of caution in circumstances where there is a suggestion that an individual might have a disability.
In order to mitigate risk, employers and agencies should have processes in place to prevent disability discrimination occurring in the workplace. Some practical tips include:
This bulletin is for general guidance purposes only and should not be used for any other purpose. Brabners is a Limited Liability Partnership