How long is ‘long term’?
Our employment team explores what constitutes ‘long term’ in the context of a disability.
The law protects job applicants, employees and workers against discrimination if they are considered disabled for the purposes of the Equality Act 2010 (EqA). To benefit from that protection, they must have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
A ‘long term effect’ is defined as an impairment which has lasted for at least 12 months, is likely to last for 12 months or is likely to last for the rest of the person’s life. A recent case at the Employment Appeal Tribunal (EAT) has further clarified that the individual needs to establish that their condition satisfied this definition of ‘long term effect’ at the time of each discriminatory act complained of.
The case concerned Mrs Tennant, who worked as a manager for Tesco. She was off sick for extended periods between September 2016 and September 2017 as a result of depression. On 11 September 2017, she brought a claim at the Employment Tribunal (ET), alleging disability discrimination. She claimed various acts of discrimination had taken place between September 2016 and September 2017.
The ET held that Mrs Tennant did have an impairment which had a substantial adverse effect on her day-to-day activities and that this had lasted for at least 12 months and therefore she was disabled for the purposes of the EqA. Tesco appealed, arguing that in order to claim disability discrimination Mrs Tennant must have been disabled at the time of each of the discriminatory acts complained of.
The EAT upheld the appeal. Mrs Tennant could only show that her depression had lasted for the 12 months from September 2016 to September 2017, but not before. Therefore it wasn’t until 6 September 2017 that she satisfied the requirement for her impairment to have lasted for at least 12 months. Also no evidence was provided by Mrs Tennant to suggest that at any time during that period the prognosis had been that her condition was likely to last for 12 months or more. Therefore at the relevant times of the alleged incidents that took place prior to this date she had not satisfied the definition of “long term effect”.
This decision will on the face of it be of some comfort to employers as limiting the scope for employees to bring discrimination claims relating to historic acts. However it is important to note that if the employee had at any point received a prognosis from a GP, Occupational Health or other medical specialist that their condition was likely to last for 12 months or more she would have been protected from a much earlier date.