EAT finds no disability discrimination where acts of discrimination pre-date Tribunal’s finding of disability pre-date the finding of disability (Tesco Stores Ltd v Mrs C Tennant: UKEAT/0167/19/OO)
In the case of Tesco Stores Ltd v Tennant, the Employment Appeal Tribunal (EAT) has held that an employee could not claim disability discrimination based on acts that occurred before the date on which an employment judge found that she satisfied the definition of disability. The employment judge had found that the claimant’s depression was a ‘long-term’ condition, as required by S.6 of the Equality Act 2010 (EqA), on the basis that it had lasted for the 12 months leading up to the date that she presented her claim. However, the EAT allowed the appeal by the respondent, stating that this was an incorrect interpretation of the law and that alleged acts of discrimination occurring before that date did not occur at a time when the claimant satisfied the definition of ‘disability’, and so could not have been discriminatory on that ground.
The facts in Tesco Stores Ltd v Tennant
Mrs Tennant (the claimant) was employed by Tesco Stores Ltd (the respondent) 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 tribunal claims of disability discrimination, harassment and victimisation, relying on a number of acts occurring between September 2016 and September 2017. The claimant argued that her depression met the definition of ‘disability’ in S.6 EqA, i.e. an impairment having a ‘substantial and long-term adverse effect on [her] ability to carry out normal day-to-day activities’. Para 2(1) of Schedule 1 to the EqA provides that an effect is ‘long-term’ for this purpose if (a) it has lasted 12 months, (b) it is likely to last 12 months or (c) it is likely to last for the rest of the person’s life.
The decision of the Employment Tribunal
The Employment Judge decided as a preliminary issue on 19 December 2018 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 2010 because by September 2017 it had lasted 12 months. The respondent appealed on the basis that in order to claim disability discrimination or harassment the claimant must be disabled at the time of the relevant act or acts of alleged discrimination and that para 2(1)(a) of Schedule 1 to EqA 2010 required the effect of the impairment to have lasted 12 months before she could be said to be disabled.
The decision of the Employment Appeal Tribunal
The EAT allowed the appeal. Although there was no authority directly on the point, it considered that the employment judge was clearly wrong, as at any of the relevant dates – i.e. the dates of the allegedly discriminatory acts between September 2016 and September 2017, the claimant’s impairment and the adverse effects thereof had not yet lasted for at least 12 months and so she was not disabled at the relevant time. The EAT rejected the claimant’s submission that it was enough that the period during which the discriminatory acts occurred coincided with the period during which the impairment was producing the adverse effect for the purpose of S.6 EqA. In the EAT’s view, it was required to consider whether, as at the date that the acts occurred, there had been 12 months of adverse effect. It therefore held that the claimant could only bring claims of disability discrimination on the basis of acts that occurred on or after 6 September 2017.
The EAT also rejected the claimant’s argument that, if it allowed the appeal, it should remit the whole question of disability to be considered under para 2(1)(b), i.e. on the basis that at some stage during the 12 months it would have been likely that the effects would last at least a further 12 months. The employment judge had noted that the question of prognosis was not addressed in the evidence, and it had been for the claimant to establish that she was disabled and to put forward the basis for that finding. It appeared that although the claimant had relied on para 2(1)(b) in the employment tribunal, her argument under it had failed. In the absence of a cross-appeal, it would not be right for the claimant to be allowed to raise the point again on remittal.
Our solicitors’ comments on Tesco Stores Ltd v Mrs C Tennant
Caroline Lewis, a specialist employment solicitor at Redmans, commented on the case: “This case reminds organisations that it is for a claimant to demonstrate that they are disabled for the purposes of the Equality Act 2010, and the definition that they will need to meet in order to have this label. 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 a claimant can demonstrate that 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 because she had presented no evidence to establish the likelihood of this, but this does not mean another claimant in a similar position would not be able to”.
The decision of the Employment Tribunal in Tesco Stores Ltd v Mrs C Tennant: UKEAT/0167/19/OO can be found here.