The Employment Appeal Tribunal (EAT) has ruled that when an employee brings a claim of disability discrimination, they can’t rely on detriments that occurred in the 12 months before they qualify as disabled under the Equality Act 2010. To recap, an individual will qualify as disabled if (amongst other things) the effect of the ‘impairment’ is long-term. The effect will be considered long-term if (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months or (c) it is likely to last for the rest of a person’s life.

The brief facts of the case (Tesco v Tennant) are these – Mrs Tennant brought proceedings in the Employment Tribunal (ET) in September 2017 for disability discrimination, harassment and victimisation. She relied upon acts of discrimination that dated back to September 2016.  At a preliminary hearing, the Tribunal Judge ruled (wrongly) that the effect of Mrs Tennant’s ‘impairment’ had lasted for at least 12 months and was therefore long-term, noting that Mrs Tennant had taken extended periods of sickness for depression from September 2016 until she brought proceedings.

Tesco appealed the decision. The nub of the appeal concerned whether at any of the dates of the alleged discriminatory acts between September 2016 and September 2017,  Mrs Tennant’s depression had lasted for 12 months.

The EAT agreed with Tesco, ruling that whilst Mrs Tennant was able to show that her condition had lasted for 12 months at the time she brought proceedings (September 2017), she was unable to demonstrate her condition has lasted for 12 months prior to the commencement of proceedings. Nor had any evidence been produced which demonstrated that in the alternative, the effect had been likely to last more than 12 months prior to September 2017.

Comment: Whilst this is a logical decision, the key lesson for employers is to undertake a proper and early medical assessment – which may have answered this question without the need to go to a Tribunal.  It is also important to remember that some conditions are automatically considered disabilities under the Equality Act 2010, these include multiple sclerosis, cancer and HIV.

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