“Long-term effect” must be satisfied at time of discriminatory acts

The EAT has clarified when the “long-term effect” aspect of the definition of disability will be satisfied.

Between September 2016 and September 2017, the Claimant in Tesco Stores Limited v Tennant had been on long periods of sick leave due to depression and claimed she had been discriminated against during this period.

An impairment for disability discrimination purposes is classed as “long-term” if it (a) has lasted 12 months, (b) is likely to last 12 months, or (c) is likely to last for the rest of the Claimant’s life.

The ET held as the Claimant had suffered the adverse effects from September 2016, and she was still suffering from the same effects 12 months later in September 2017, the “long-term effect” part of the definition of disability (as set out in strand (a) above) was satisfied.

However, the EAT disagreed and held that the (a) strand of the definition would be satisfied if on the date of the alleged discriminatory treatment, “there has been 12 months of effect”.

As the Claimant only satisfied the “long-term effect” aspect of the definition as of September 2017, she did not satisfy the definition of disability at the time of the alleged acts of discrimination, and her claim failed.

This case is a useful indicator for both employers and employees of how the ET will approach the question of “long-term effect” in future disability discrimination cases.