Disability must be long-term when discrimination occurs

A claimant can only claim disability discrimination if they can show their condition is long-term at the date when the alleged discrimination take place.

When is somone disabled?

A person is disabled under the Equality Act 2010 if they have an impairment which has a substantial and long-term adverse effect on their ability to carry out normal day to day activities.  An impairment has long-term effects if it has either lasted for 12 months or if it is likely to last for 12 months (or for the rest of the person’s life).

Employment judge rules claimant disabled from time adverse effects started

In Tesco Stores Ltd v Tennant, Ms Tennant was off work sick with depression for extended periods from September 2016. She brought a disability discrimination claim on 11 September 2017 alleging she had been discriminated against on several occasions between September 2016 and September 2017. The employment judge found that she suffered from depression and that it had a substantial adverse effect from 6 September 2016. He went on to rule that she was disabled from 6 September 2016 and allowed her to claim in respect of all the alleged acts of discrimination. 

Employment Appeal Tribunal disagrees

Tesco appealed to the Employment Appeal Tribunal. The Employment Appeal Tribunal ruled in Tesco’s favour. The employment judge had been wrong to rule that that Ms Tennant was disabled from 6 September 2016. As he had found that her impairment had a substantial adverse effect from that date, it could only be long-term when it had lasted for 12 months (i.e. from 6 September 2017). She was therefore only disabled from 6 September 2017. As a result, she could not claim in respect of any of the alleged acts of discrimination that took place before that date.

The Employment Appeal Tribunal refused to allow the tribunal to consider whether the claimant was disabled at an earlier date on the basis that her condition was likely to last 12 months. It ruled that she had already attempted this argument before the employment tribunal and it had failed.

Implications

Employers facing disability discrimination claims should consider whether they can argue that the claimant was not disabled at the time of the alleged discrimination, because the effects of the impairment were not long-term at that date. If the effects have not lasted for 12 months and the claimant has not shown that they were likely to last more than 12 months, they will not be disabled. 

Claimants suffering from an impairment where the adverse effects have not lasted for 12 months should try to obtain medical evidence showing they are likely to last 12 months.This may be easier for physical impairments than for mental impairments but where a mental impairment has lasted for, say eight or nine months, a medical practitioner may be prepared to say it is likely to last for 12 months.