In order to successfully claim disability discrimination, an employee normally needs to be able to prove that their disability has lasted or is likely to last 12 months or more. So what happens if an employee suffers discrimination before the 12-month point?

Tesco Stores Ltd v Tennant

Ms Tennant was a checkout manager at Tesco. In September 2016, she first went off sick with depression. A year later, in September 2017, she filed Employment Tribunal claims against Tesco, alleging various forms of disability discrimination, harassment and victimisation. Ms Tennant successfully argued that she had a disability, given that her depressive illness had lasted more than 12 months. The Employment Tribunal went on to uphold her claim for disability discrimination on the basis that she had effectively been disabled throughout the previous year.

Tesco appealed the decision. It argued that Ms Tennant only became disabled (for employment law purposes) after 12 months had passed. As a result, only acts of discrimination that occurred after that period of time could be said to amount to unlawful disability discrimination. The Employment Appeal Tribunal agreed and concluded that the Employment Tribunal had been wrong to find otherwise.  

The claimant belatedly tried to resurrect the argument that at some point during the relevant 12-month period, her condition was likely to last 12 months or more, such that it should have been deemed to be a disability from that point onwards. For various (rather technical) reasons, the EAT ruled that the claimant had missed the opportunity to pursue this line of argument any further.

Pay close attention!

This case reminds us of the importance of carefully considering each and every aspect of a claimant’s case, when deciding whether they satisfy the relevant statutory tests.  

It would be interesting to know whether Ms Tennant has now filed further claims against Tesco, based on alleged incidents of discrimination occurring after September 2017.  Presumably, a claim of this nature is much more likely to succeed. All in all, this decision may not be the end of this particular legal saga!

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