Disability discrimination – the impact of impairments

Background

Ms Tennant worked for Tesco from June 2005. She was intermittently absent from work from September 2016 onwards due to depression.

A year later, on 11 September 2017, Mrs Tennant brought an Employment Tribunal claim on the basis of disability discrimination, harassment and victimisation. The acts on which Mrs Tennant relied were all dated between September 2016 and September 2017.

Employment Tribunal findings

At a Preliminary Hearing the Employment Tribunal considered whether the Claimant was a disabled person for the purposes of the Equality Act 2010.

Under the Equality Act, disability is defined by a person having:

• a mental or physical impairment;
• that is long term (having lasted longer than 12 months or is likely to do so); and
• that has a substantial adverse effect on their day-to-day activities.
• the effect of an impairment is long-term if:

The Employment Tribunal held that Mrs Tennant had an impairment (depression) which had a substantial adverse effect on her ability to carry out normal day-to-day activities and (by the time of the claim) had lasted for at least 12 months.

The Employment Tribunal held that Mrs Tennant was a disabled person, and had been so from September 2016 onwards when her depression symptoms were first apparent.

The Employment Tribunal held this, despite having found no evidence or prognosis to suggest that the effect of the Claimant’s depression was assessed at the outset as likely to last more than 12 months.

Employment Appeal Tribunal decision

Tesco appealed to the Employment Appeal Tribunal (EAT), arguing that the effects of the Claimant’s impairment were not “long-term” (either lasting for 12 months or more, or likely to do so) at the dates of the various acts of alleged discrimination or harassment.

The EAT held that the Employment Tribunal’s conclusion was plainly wrong because, as at any of the relevant dates up until 6 September 2017, the Claimant’s impairment and its effects had not yet lasted for at least 12 months (and nor was there any evidence suggesting that they were likely to do so). Therefore, the EAT substituted a finding that the Claimant was disabled from 6 September 2017 onwards, not at the date that her symptoms began.

Comments

Had the EAT upheld the Employment Tribunal’s finding that the Claimant was disabled from September 2016, this would have been potentially problematic for employers faced with employees suffering from impairments which have uncertain prognoses.

The EAT noted that  an employer may carry out an assessment of the condition at the start of the 12 month period and reach the view that the adverse effects of the employee’s impairment were not likely to last for 12 months.

If the adverse effects of the employee’s impairment did then ultimately last for more than 12 months, the employer would potentially find themselves unfairly liable for things that they had done or failed to do 12 months earlier, despite the employee having not met the definition of a disabled person at the time.

This does not, of course, absolve employers from needing to consider whether an impairment will last 12 months or more at the time of the condition starting. It is important to seek appropriate medical advice and then document any decision made regarding disability, including the reasons why an employer does not believe the definition is met. This should then be considered throughout the next 12 months.

This case is helpful for situations where the length of an employee’s impairment is uncertain. However, this is unlikely to be the situation in many disability related cases and employers should be cautious of using this as authority to support their actions where they have not sought evidence around the likely length of the impairment.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.