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To satisfy the definition of ‘disabled’ under the Equality Act 2010, an employee must show that they have a physical or mental impairment which has a substantial and long-term effect on their ability to do day to day things. To be long term, the impairment must have either:

  • Lasted for 12 months;
  • Be likely to last for 12 months; or
  • Be likely to last for the rest of the person’s life.

In Tesco v Tennant, the EAT looked at the importance of establishing that an individual is disabled at the time of alleged discriminatory acts. The employee was a checkout manager. She was off sick from September 2016 due to depression. She brought a claim for disability discrimination in September 2017 for alleged discriminatory acts between September 2016 and September 2017. The employment tribunal said she was disabled, because at the time of the hearing her condition had lasted for at least 12 months. The employer appealed, saying that the employee must be disabled at the time of the alleged acts. This meant that the depression must have lasted for at least 12 months before each of the alleged discriminatory acts.

The EAT agreed. The employee had not provided evidence to show that her condition would last for more than 12 months or the rest of her life. The employee could only be disabled from September 2017, 12 months after the depression began. Any acts before this date could not be considered in a discrimination claim.

This case shows how important it is to examine the evidence in disability discrimination cases. Many employees will have medical evidence which says their condition is likely to last for 12 months, meaning they can meet the definition immediately. Identify those whose condition either hasn’t lasted for 12 months yet or hasn’t been established as likely to last for 12 months or the rest of a person’s life. This can knock out whole cases or significant parts of them right off the bat.

Find out how we can help.  Our partner, Jon Dunkley, heads the Wollens specialist Employment Department.  Contact him today for an informal chat, without obligation on 01271 342268 or via email at jon.dunkley@wollens.co.uk.

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