Case Law Update: When is an Impairment a Disability?

Ben McCarthy

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14 Feb 2020

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The Employment Appeal Tribunal (EAT) has ruled that, when bringing a claim of disability discrimination, a claimant must show that their condition has a ‘long-term effect’ at the time of the alleged acts of discrimination.

If you want a quick summary of the case and the main takeaway points, you can skip ahead to our Too Long; Didn't Read section here.

Tesco v Tennant

The law

The Equality Act 2010 makes it unlawful to discriminate against an individual, directly or indirectly, due to their having a disability.

The Act also prohibits victimisation. This is where an individual is subjected to a detriment as a direct result of bringing a complaint of discrimination.

In order to be disabled for the purposes of the Act, a person needs to have a physical or mental impairment.

This impairment must have a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

An impairment is considered ‘long-term’ if it has lasted for at least 12 months. Or, is likely to last for at least 12 months, Or, likely to last for the rest of the life of the individual.

Background to the case

This case concerned a claimant who had worked for the employer for ten years.

In September 2016, she took extended periods of time off work as a result of a diagnosis of depression.

Between September 2016 and September 2017, she claimed she experienced acts of discrimination and victimisation from the organisation. Therefore, she brought claims to the employment tribunal (ET).

What did the employment tribunal say?

The tribunal needed to determine if the claimant was actually disabled for the purposes of the 2010 Act. If she wasn’t, the claim would be null.

They held a preliminary hearing. In it, the medical records of the claimant’s condition were presented. And, during the hearing, the employee was also invited to give evidence.

Ultimately, the ET found that the claimant’s condition met the definition outlined in the Act, meaning she was disabled.

They concluded that the claimant’s depression was an impairment that had had an adverse effect upon her from September 2016. As she had still been suffering from it 12 months later, it met the requirement to be considered ‘long-term’.

The organisation appealed against this decision to the EAT.

What did the Employment Appeal Tribunal (EAT) say?

The EAT upheld the appeal, outlining that the tribunal had been ‘plainly wrong’.

They held that it was necessary for the claimant to satisfy that her condition met the definition of disability at the time of the discriminatory acts.

She was able to show that her condition had lasted for 12 months by the time of the claim. But, she was unable to demonstrate this prior to the claim. Therefore, any acts of alleged discrimination in this period could not be classed as such. Why? Because the claimant couldn’t be considered disabled then.

The EAT also refused a remission to the tribunal. This was requested to determine whether the claimant could argue that her condition was likely to last 12 months in the period between September 2016 and September 2017.

This was because she had already presented this argument to the tribunal. They’d considered it and, ultimately, not upheld it. The judge had stated that there was no evidence presented to him that showed the effect of her impairment was likely to last for 12 months at the time, or for the rest of the life of the claimant.

Takeaway points

This ruling reminds organisations that the claimant must be able demonstrate that they are disabled. It’s also the claimant’s responsibility to demonstrate that they’ve been subjected to discrimination.

Proceed with care when faced with an employee who has a condition that could potentially be considered a disability.

If their condition is likely to last for a period of 12 months, even if it has not yet done so, this could still lead to a costly discrimination claim for an organisation.

In this case, the claimant was ultimately unsuccessful. This was because she had presented no evidence to establish the likelihood of this. But that doesn’t mean another claimant in a similar position wouldn’t be able to.

Organisations should also remember that some conditions when diagnosed are automatically considered disabled under the Act. These are HIV, cancer and multiple sclerosis.

TL;DR

An employee who took extended time off work for depression experienced discrimination during a year of her employment. She brought a claim against her employer.

The tribunal had to determine whether her depression could be perceived as a disability under the Equality Act. They found that it was. Therefore, she was found to have been discriminated against.

Her employer appealed this decision at the EAT. They found that although the employee was technically disabled, she was unable to demonstrate this prior to her discrimination claim. Therefore she wasn’t considered disabled because she’d not had her condition for 12 months. As a result, she wasn’t discriminated against.

This case serves as a reminder that it’s the claimant’s responsibility to demonstrate they’ve been subjected to discrimination at the time of the act. But remember, if you are dealing with an individual who could potentially have a disability, proceed with care. Some conditions are automatically considered disabilities under the Equality Act 2010. These are HIV, Cancer and multiple sclerosis.

Expert support

Worried how this latest ruling might impact your business? Dealing with a difficult HR situation and not sure where to turn? Speak to a Croner expert today for support and guidance on 01455 858 132.

About the Author

Ben McCarthy works as a content writer for Croner producing commentary and guidance on employment law and key HR developments. Coming from an extensive legal background, Ben regularly constructs key training materials for clients and advisers, and provides daily contributions to national publications.

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