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Reliance on Detriments for Disability Discrimination: Tesco Stores Limited v Tennant

In order to satisfy a disability discrimination claim under the Equality Act 2010, a claimant must show that they suffered an impairment which had a substantial effect on their normal day-to-day activities and which was long term. The effect of an impairment is long-term if:

  1. it has lasted for at least 12 months;
  2. it is likely to last for at least 12 months; or
  3. it is likely to last for the rest of the person’s life.

In the case of Tesco Stores Limited v Tennant, Mrs Tennant was a checkout manager working for Tesco and had been absent due to depression from 6 September 2016 onwards. On 11 September 2017, Mrs Tennant brought a claim in the Employment Tribunal for alleged disability discrimination and harassment as a result of the actions of Tesco from September 2016 onwards.

The first-tier Employment Tribunal (ET) found that Mrs Tennant was disabled within the means of the Equality Act as from 6 September 2016 she had suffered with depression (an impairment) and this had a substantial adverse effect on her ability to carry out normal day-to-day activities. The ET decided that Mrs Tennant’s impairment was long term as it had lasted for at least 12 months, relying on the fact that Mrs Tennant had brought her Tribunal claim the following year in September 2017. In making their decision, the ET determined that there was no evidence to suggest that it was likely that Mrs Tennant’s depression would last more than 12 months or the rest of her life.

Tesco appealed the ET decision on the grounds that Mrs Tennant must have been disabled at the time of the relevant act of discrimination in order to satisfy the requirements of disability discrimination under the Equality Act. Tesco argued that in order to satisfy the long-term requirement, the effect of the impairment had to have lasted 12 months before Mrs Tennant could be regarded as disabled.

The Employment Appeal Tribunal agreed with Tesco and substituted the original findings of the ET so that Mrs Tennant could only be regarded as being disabled from 6 September 2017 (i.e. 12 months after the impairment started). Mrs Tennant was therefore only able to bring claims from 6 September 2017 until 11 September 2017 (when the claim was presented).

Where a claimant has suffered a detriment prior to their qualification as disabled under the Equality Act, they cannot seek to rely on such detriments after they are deemed to be qualified.

This bulletin is for general guidance only and should not be used for any other purpose. It does not constitute, and should not be relied upon as legal advice.

JMW Solicitors is a Limited Liability Partnership.

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