The claimant was employed as a checkout manager at Tesco.   The claimant had been off sick with depression for ‘extended periods’ between September 2016 and September 2017.  It was in September 2017 that she raised the issues of disability discrimination, harassment and victimisation.  There was a preliminary hearing to determine whether the claimant was classified as disabled within the meaning given under Section 6 of the Equality Act 2010 [Section 1 of the Disability Discrimination Act 1995] which requires that it will include one that has a ‘substantial and long-term adverse effect’ in carrying out normal daily activities.  This is then given extra clarity through Schedule 1 of the Equality Act 2010 [Schedule 1 of the 1995 Act] which states that long-term will be if it has lasted 12 months, it is likely to last 12 months or likely to last for the rest of the person’s life.  The issue for the Tribunal was whether the depression fell into this definition and if it did when did it start for the purpose of any discrimination claim being brought.

At first instance, the ET found that that the depression had the long-term adverse effect for at least a year on 6th September 2017 and for that reason she was suffering from a recognised disability under the legislation for the whole of the period that she was off and accordingly claiming for the discrimination.  This decision was appealed by Tesco arguing that it had not lasted 12 months at the relevant time so was not disabled for the purpose of the case.

The EAT rejected the argument by the claimant that it was sufficient to demonstrate that the discriminatory acts had occurred within the period when she was suffering from the adverse effects.   The EAT in examining the points made at the lower court stated that the 12 months adverse effect had only been shown in September 2017 and for that reason there could only be disability discrimination claims on the basis of acts that had occurred after September 2017. This was the time when the legislation then recognised that she had the disability and could then avail of the protection. The reason for this was set out by the EAT Judge when he stated that if the employer had made a finding that the adverse effect was unlikely to last for 12 months but then it did in fact last for 12 months then they could be liable for actions within that period even though they thought it would not last the requisite period.  Therefore, the appeal was allowed and the case was dismissed.

Practical Lessons

This case can be seen as somewhat of a harsh decision with the Tribunal effectively saying that there can be less favourable treatment when the long-term adverse effect has not lasted 12 months and there was a view that it was unlikely to last 12 months.    That being said, the Tribunal was trying to find a balance here and ensure that unsuspecting employers would not be found liable if the time was to be essentially back-dated to when the disability ‘began’.  Accordingly, one should be mindful that when there is a long-term adverse effect the Tribunal will only consider events after the classification of disability has arisen under the legislation.
https://www.gov.uk/employment-appeal-tribunal-decisions/tesco-stores-ltd-v-mrs-c-tennant-ukeat-0167-19-oo