The definition of being disabled
When an individual brings a claim for disability discrimination, the Employment Tribunal will need to consider whether they are disabled under the provisions of the Equality Act 2010.
An individual is disabled if they (a) have a physical or mental impairment and (b) if the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities and (c) that the impairment is long term. To be deemed to have a long-term effect, an impairment has to have lasted at least 12 months, it is likely to last 12 months or it is likely to last for the rest of the life of the individual affected.
The recent case of Tesco Stores Ltd v Tennant confirms the position that an individual must show that their condition had a “long-term effect” at the time of the alleged acts of discrimination.
In this case, Mrs Tennant suffered from depression from early September 2016. She brought a disability discrimination claim against her employer in September 2017 relying on acts which took place from September 2016 onwards.
The Tribunal held that because Mrs Tennant’s depression had had substantial adverse effect between September 2016 and September 2017, Mrs Tennant was suffering a disability throughout the whole of that period and she was therefore considered to be disabled.
Tesco Stores Ltd successfully appealed the decision to the Employment Appeal Tribunal (the EAT) which held that the correct approach to consider was whether Mrs Tennant was disabled for the purposes of the Equality Act at the time of the acts complained of. The EAT considered that Mrs Tennant could only bring a claim once her mental impairment was long term i.e. had lasted for at least 12 months. Therefore it was decided that Mrs Tennant did not satisfy the definition of being disabled at the time of discrimination.
As prognosis was not addressed in evidence, the EAT refused Mrs Tennant’s arguments that she satisfied the definition of disability at the time of the alleged acts as her symptoms were likely to last 12 months.
Whilst employers can take comfort in the knowledge that claimants are being challenged on disability status rather than the Tribunal/EAT simply accepting they are disabled as has sometimes been our experience, we also caution against too much reliance on this decision. The decision in this case largely resulted from a lack of evidence of prognosis or likely duration of the impairment. As set out above an individual can satisfy the definition of disability if they can prove their symptoms ‘are likely to’ last 12 months therefore had Mrs Tennant provided supporting evidence of this, we consider the appeal may not have been successful.
In considering whether individual employees are disabled for the purposes of the Equality Act, employers should seek a medical opinion and if an impairment has not yet lasted 12 months, this should cover the likely prognosis in order to properly assess the position and ensure appropriate steps are taken.
How can we help?
If you’d like more information or advice on whether one of your employees meets the definition of being disabled under the Equality Act, please contact a member of our Employment and Pensions Team or call 0207 880 4263.