In Tesco Stores Limited v Tennant, the Employment Appeal Tribunal held that in a disability discrimination claim, a Claimant must show that their condition satisfied the definition of ‘disabled’ at the time of the alleged act of discrimination.
Tesco Stores Limited v Tennant concerned Mrs Tennant, a check-out manager from Tesco who had been off sick for extended periods from September 2016 due to depression. A year later, Mrs Tennant raised proceedings for disability discrimination and harassment following alleged incidents involving her employer that took place from September 2016 to September 2017.
In order to raise this type of claim, the tribunal must be satisfied that the Claimant is disabled. As defined in the Equality Act 2010, a person has a disability if they have a physical or mental impairment which is long-term and which has a substantial adverse effect on their ability to carry out normal day-to-day activities. By long-term, it means an impairment that has lasted for 12 months or is likely to last 12 months, or to the end of the person’s life. In the first instance, the Employment Tribunal held that Mrs Tennant was disabled, as by the time proceedings commenced her impairment had lasted 12 months.
However, Tesco appealed this decision on the basis that when the alleged discriminatory incidents occurred, the Claimant had not yet been impaired for 12 months and had no prognosis detailing that her impairment was likely to last 12 months. Accordingly, the Claimant could not yet have satisfied the definition of disabled under the Equality Act 2010. The Employment Appeal Tribunal allowed the appeal, holding that in order to claim disability discrimination, the Claimant must have satisfied the definition of disabled at the time of the act complained of.
This ruling will provide employers with some comfort. That said, employers should note that employees can still be considered disabled before suffering a condition for a period of 12 months. If an employee can demonstrate that their condition is likely to last for 12 months, they will be afforded the protections under the Equality Act. When dealing with an employee who has a condition that could potentially be considered a disability, caution should be exercised and attention should be paid to any prognosis.