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Discrimination protection may only apply from when an employee is ‘disabled’

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Issue

The Equality Act 2010 provides that a person is disabled if they have an impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. In this regard ‘long-term’ mean that it has lasted 12 months or is likely to last 12 months. The question in the case of Tesco Stores Ltd v Tennant  was whether after the adverse effects had lasted 12 months a claim could be brought in respect of acts that occurred during the 12 month period?

Facts

Mrs Tennant was a checkout manager. She was off sick with depression for extended periods from September 2016. A year later, on 11 September 2017, she submitted claims of disability discrimination in relation to incidents that had happened over the previous 12 months. The employer argued amongst other things that whilst she was disabled now she had not been disabled at the time of the acts that she alleged took place

Decision

It was held that as at the time of the alleged incidents of discrimination Mrs Tennant was not disabled. She had only become disabled when the impairment and the adverse effects had lasted for at least 12 months. It was not enough to establish protection that the discriminatory acts occurred during the same period the impairment was producing the adverse effects. Protection would only apply if as at the date the acts occurred there had been 12 months of adverse effect. 
 

Key takeaway point

Make sure the disciplinary process is fair when looked at as a whole always ensuring that any policy is followed and that steps are taken so that the employee fully knows the allegations that need to be answered in advance of any final hearing.  

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