No disability discrimination where allegedly discriminatory acts pre-dated finding of disability


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The Employment Appeal Tribunal (EAT) has held in Tesco Stores Ltd v Tennant that an employee could not claim disability discrimination based on acts that occurred before the date on which an employment judge found that she satisfied the definition of disability.

Mrs Tennant was employed by Tesco as a checkout manager.  From September 2016 onwards she was off sick with depression for extended periods.  In September 2017 she brought tribunal claims of disability discrimination, harassment and victimisation and relied on a number of acts which occurred between September 2016 and September 2017.  She argued that her depression (which had a substantial and adverse effect on her ability to carry out normal day-to-day activities and which was long-term as it had lasted 12 months) met the definition of "disability" in section 6 of the Equality Act 2010.  An employment judge accepted that Mrs Tennant's condition had lasted for the 12 month period up to 6 September 2017 and concluded that she had suffered from a disability for the whole of that period.

The EAT disagreed.  It held that as at any of the relevant dates (the dates of the allegedly discriminatory acts between September 2016 and September 2017) Mrs Tennant's impairment had not yet lasted for at least 12 months and so she was not disabled at the relevant time.    In the EAT's view it had to determine, whether, as at the date that the acts occurred, there had been 12 months of adverse effect.  It followed that Mrs Tennant could only bring claims of disability discrimination on the basis of acts that occurred on or after 6 September 2017.

Take note: The decision in Tennant shows that, in order to be able to claim that acts are discriminatory, it is necessary to establish that, at the time they occurred, the claimant was actually disabled.

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