Under Section 6 (1) of the Equality Act 2010, a person 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. We are told by paragraph 2(1) of Schedule 1 of the Equality Act 2010, that the effect of an impairment is “long term”, if it has (a) lasted for at least 12 months (b) is likely to last at least 12 months or (c) is likely to last for the rest of the person’s life.
In this particular case that has reached the Employment Appeal Tribunal, the claimant was employed by Tesco. After she had been there for 11 years, she became unwell for extended periods as a result of suffering depression. She brought a claim for disability discrimination one year later, alleging discriminatory acts during that previous year.
The Tribunal had a preliminary hearing to determine whether or not she was disabled within the meaning of the legislation. The Employment Tribunal found that the depression was an impairment that had affected the employee from the period when she went off sick. Given that she was still suffering from depression 12 months later, the Tribunal found the definition of disability had been satisfied but Tesco appealed.
The Employment Appeal Tribunal upheld Tesco’s appeal. It said it was necessary to determine whether the definition of ‘disability’ was satisfied “at the time of the discriminatory acts”, not at the time the claim was issued. The Claimant could not show that at the time of what she said were the discriminatory acts, that she had been unwell for a 12 month period. The effect in this particular case was to limit the period in which the employee could complain effectively to 2 days only.
This ought to give comfort to many employers that the likelihood of someone being able to prove a complaint has been restricted by this decision.
March 2020
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