Employment and Immigration Law Update – Disability: long term effect

The Employment Appeal Tribunal (EAT) has considered at what point an individual’s condition is regarded ‘long term’ for the purposes of the definition of a disability under the Equality Act 2010.

Tesco Stores Ltd v Tennant, UKEAT/0167/19

Facts

The claimant had periods off sick with depression from September 2016. A year later she brought claims for disability discrimination, harassment and victimisation, relying on acts occurring in the period from September 2016 to September 2017.

In a preliminary hearing to determine whether the claimant was disabled, the tribunal held that her depression was an impairment that had had an adverse effect since September 2016. She was still suffering from the condition 12 months later, when she brought the tribunal claim, so it was therefore ‘long term’. Tesco appealed.

EAT decision

The EAT upheld the appeal on the basis that at the time of the alleged discriminatory acts, the claimant was not disabled. She could only show that her condition had lasted for 12 months at the time she submitted her claim, not before. At the time of the alleged discrimination, her condition was not ‘long term’ as required by the Equality Act 2010, so she was not disabled.

The EAT refused to remit to the tribunal the question of whether the claimant was disabled at an earlier date, on the basis that her condition was likely to last 12 months, as the tribunal had already rejected this argument. The judge had not been presented with evidence on the claimant’s prognosis from which he could conclude that she was disabled at an earlier date.

Consequences

This case is at first sight surprising; it is usually assumed that individuals with periods of long term sickness absence for mental health conditions such as depression will satisfy the definition of a disability, meaning that they are protected under the terms of the Equality Act 2010.

The EAT’s decision provides a reminder that if, at the time of the alleged acts, the individual’s condition is not already ‘long term’ (it has not lasted for at least 12 months), then it will be for the individual to show that it is likely to last for at least 12 months. This will be relatively easy for an individual to do in many cases if medical evidence of the prognosis is available, but without such evidence their claim is likely to fall at the first hurdle.

This article is from the February 2020 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts’ Employment Law Team.