DISABILITY DISCRIMINATION: LONG-TERM REQUIREMENT
Section 6 of the Equality Act 2010 (EqA) states as follows:
(1) A person (P) has a disability if—
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P’s ability to
carry out normal day-to-day activities.
Paragraph 2 of Schedule 1 of the EqA states that:
(1) The effect of an impairment is 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 the life of the person affected.
(2) If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.
Until Tesco Stores Ltd v Tennant UKEAT/0167/19 there was no direct authority on whether it was possible to pursue claims of alleged disability discrimination during the 12-month period starting from the date the impairment met all the other requirements under the legislation.
What was it about?
The Claimant was employed by Tesco as a checkout manager in the Bicester store from 24 June 2005. She was off sick for extended periods from September 2016 as a consequence of depression. A year later, on 11 September 2017, she brought proceedings alleging disability discrimination and harassment and victimisation. The acts relied on occurred between September 2016 and September 2017.
The mental impairment had a substantial impact on her from 6th September 2016 and had lasted for 12 months by 6th September 2017. No evidence was led by the Claimant on the issue of whether at any date during that period it could be said that her depression ‘was likely to last 12 months’ (Para 2(1)(b) of Schedule 1 to EqA).
The Employment Tribunal held as a preliminary issue that the Claimant was disabled at the relevant time, finding that from 6 September 2016 she suffered an impairment (namely depression) which had a substantial adverse effect on her ability to carry out normal day-to-day activities and which was long-term under para 2(1)(a) of Schedule 1 to EqA because by September 2017 it had lasted 12 months. Controversially the Employment Judge then allowed all her disability discrimination claims from September 2016 onwards to proceed in effect holding her to be disabled even though the long-term requirement was not met until September 2017.
What did the Employment Appeal Tribunal think?
HHJ Shanks in a short and clear judgment allowed the appeal finding that the wording of paragraph 2 of Schedule 1 of the EqA was plain and the Claimant could only bring claims from 6 September 2017 i.e. once her mental impairment was long term (had lasted for at least 12 months).
What can we take away?
It is somewhat surprising that this point remained undecided for so long bearing in mind disability discrimination has been around for well over 20 years. The reason is probably because the answer is obvious. The legislation makes it clear that a Claimant (who meets the other requirements under the legislation) must also meet the long-term requirement before that person is a disabled person and can bring claims of being discriminated against on the grounds of disability. As was pointed out by HHJ Shanks at paragraph 8:
‘an employer who did the right thing would make the relevant assessment and may have come to the proper view at the beginning of the 12-month period that the adverse effects were not likely to last for 12 months but then, when in fact, it turned out that they did last 12 months, the employer would find himself liable for things that he had done or failed to do 12 months earlier.’
In short if you do not meet the long-term requirement any acts or omissions cannot be because of the disability because the Claimant is not disabled until all the requirements are met.
On a practical point, if a Claimant wishes to pursue alleged acts of disability discrimination which occurred within 12 months of the impairment having been diagnosed (where the impairment meets all the other requirements) then it is essential that evidence is led on the issue of whether it was ‘likely to last 12 months’. This evidence usually comes from a medical practitioner. I have certainly found that in the case of depression once the impairment has lasted for more than 8 or 9 months a medical practitioner may be prepared to say that it was likely to last for at least 12 months.