Mrs Tennant worked as a checkout manager for Tesco. She was off sick with depression for extended periods of time from September 2016. She brought a claim of disability discrimination a year later, alleging that she was discriminated against between September 2016 and September 2017.
Mrs Tennant said that her depression amounted to a disability, i.e. that it was an impairment which had a substantial and long term adverse effect on her ability to carry out day-to-day activities. An effect is considered ‘long term’ if it has lasted 12 months, is likely to last for 12 months or is likely to last for the rest of that person’s life. At a hearing held to decide whether Mrs Tennant was disabled, the employment judge decided that Mrs Tennant’s depression was an impairment that had had an adverse effect from 6 September 2016. Given that she was still suffering from depression 12 months later, the tribunal found that she was disabled. Tesco appealed.
The EAT decided that, at the time of the allegedly discriminatory acts that Mrs Tennant complained about, her impairment and the adverse effects of it had not yet lasted for at least 12 months, and there was no evidence before the tribunal that it was likely to last for 12 months. This meant she was not disabled at the time when the acts she complained of happened and she could not continue with her disability discrimination claim.
This decision is a useful reminder for HR that in order to succeed in a disability discrimination claim, an employee must be able to demonstrate that they were disabled at the time of the alleged discriminatory acts. Sometimes this is a point that gets overlooked, particularly where a condition is having ongoing effects.
That said, organisations should still proceed with care when faced with an employee who has a condition that could potentially be considered a disability. If the employee can demonstrate that their condition is likely to last for a period of 12 months, even if it has not yet done so, then they may still be disabled. There are also some conditions that automatically amount to a disability, such as cancer and HIV.
Tesco Stores Ltd v Tennant UKEAT/0167/19/00 https://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKEAT/2019/0167_19_1911.html&query=(Tesco)+AND+(Stores)+AND+(Ltd)+AND+(v)+AND+(Tennant)
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