The question of whether an employee can successfully challenge an employer for disability discrimination will depend on the employee being determined to be disabled at relevant time. Therefore, if an employee is dismissed of 1 April but an Employment Tribunal determines that the employee only became disabled on 14 April there will be no disability discrimination because at the relevant time (1 April) the employee was not disabled.

In a recent Employment Appeal Tribunal (Tesco Stores Limited v Tennant) a quite possibly disabled worker has had her right to challenge alleged discriminatory conduct effectively removed in circumstances similar to the above example.

The claimant brought a number of complaints of disability discrimination relating to how her employer, Tesco, had treated her in September 2016. The claimant made a employment tribunal claim in September 2017, a year later than the first instances complained about. There is no reference to a dismissal (unfortunately I am unable to locate the original tribunal’s decision) so I infer that the claimant remained in employment.

The issue of whether the claimant was disabled was considered at a preliminary hearing. The legislation sets out two circumstances that a person has a “long term” impairment, which is a necessary component of a person meeting the statutory definition of a disabled person (the legislation also says an impairment is long term if it will last for the rest of the individual’s life). The legislation in question is paragraph 2(1)(a) and 2(1)(b) of Schedule one of the Equality Act 2010:

2(1)The effect of an impairment is long-term if:

(a)it has lasted for at least 12 months,

(b)it is likely to last for at least 12 months

The claimant had argued her case that the claimant was disabled as under paragraph 2(1)(a) of the Schedule One (namely that the impairment had lasted for at least twelve months). The Tribunal accepted on the evidence that on 6 September 2017 the claimant’s impairment had met the this paragraph and that, therefore she was a disabled person. However, the Respondent’s argument was that even for a disability discrimination claim to succeed on the terms the claimant had argued it was necessary for the impairment to have lasted at least twelve months at the time of the alleged discrimination (that is, in September 2016).

The decision of the EAT was that the claimant was not a disabled person at any time before 6 September 2017. The effect of the decision was that nearly all of the claimant’s claim was effectively struck out and she could only rely on alleged discriminatory acts between 6 September (when disability began) and 11 September 2017 (when the tribunal claim was made).

Without question this is a harsh decision that has placed a claimant at a very substantial disadvantage on the basis of a strict excising of the wider context of statutory language on the case in question and I do wonder whether this could be appealed further, the case certainly does not sit right with me and strikes me as overly formalistic. This is because the next sub-paragraph (which was not the subject of the appeal)  also stipulates that an impairment is “long term” if the impairment could well last for twelve months if it has not already. It seems entirely possible that the claimant would have met the requirement for the impairment to be long term had paragraph 2(1)(b) had been applied but it was not and the EAT refused to allow this to be reconsidered at the remitted hearing that was ordered.

The decision in Tennant is I think a stark reminder of the importance of carefully pleading and evidencing disability in cases where case is  an impairment may not have lasted for at least twelve months at the point acts of alleged discrimination occur. By this I mean first that that pleadings make reference to the long term being established with reference to both paragraph 2(1)(a) and 2(1(b), namely that an impairment has lasted and in the alternative is likely to last for 12 months (and paragraph 2(1)(c) which relates to an impairment lasting for the rest of one’s life if relevant).  Second, evidence is gathered at an early stage of proceedings (ideally before the claim itself)) to show evidence relating to prognosis (that it is likely to last for at least 12 months).

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