Tesco Stores Ltd v Tennant

For disability discrimination claims, disability must be assessed at the date of the alleged discriminatory act. Under paragraph 2(1)(a) of Schedule 1 to the Equality Act 2010, an impairment is long-term only once its substantial adverse effect has already lasted at least 12 months. Later events cannot retrospectively make the claimant disabled at earlier dates.

A respondent wishing to preserve an alternative basis for disability under paragraph 2(1)(b) must challenge the tribunal’s adverse finding by cross-appeal. In its absence, the EAT will not remit that issue for reconsideration.

The claimant, a Tesco checkout manager, brought claims of disability discrimination, harassment and victimisation based on acts between September 2016 and September 2017. She had suffered depression with a substantial adverse effect from 6 September 2016.

At a preliminary hearing, the Employment Tribunal held that she was disabled throughout that period because the effect had in fact continued for 12 months. Tesco appealed. The central issue was whether paragraph 2(1)(a) of Schedule 1 to the Equality Act 2010 could make a claimant disabled retrospectively before the 12-month period had elapsed.

1. Appeal allowed. The Employment Judge had correctly identified that disability had to be assessed at the dates of the alleged discriminatory acts, but had wrongly applied that approach.

2. Section 6 of the Equality Act 2010 requires a substantial and long-term adverse effect. Under paragraph 2(1)(a) of Schedule 1, the effect is long-term if it has lasted at least 12 months. At each relevant date before 6 September 2017, the claimant’s depression and its effects had not yet lasted 12 months. The fact that they subsequently did so could not satisfy that condition retrospectively.

3. That construction also avoids retrospective liability. An employer may properly conclude at an earlier date that an effect is not likely to last 12 months, yet would otherwise become liable retrospectively merely because the effect later persisted.

4. The claimant could in principle have relied on paragraph 2(1)(b), which concerns an effect likely to last at least 12 months. However, the Employment Judge had not found that basis established. The claimant bore the burden of proving disability and had not brought a cross-appeal against that finding or the alleged failure to address the point. The issue could not therefore be reopened on a remittal.

5. The EAT substituted a finding that the claimant was disabled from 6 September 2017 until presentation of the ET1 on 11 September 2017. It made no finding beyond that date.

• Employment Appeal Tribunal: allowed Tesco’s appeal and substituted a finding that the claimant was disabled only from 6 September 2017 until 11 September 2017.
• Employment Tribunal: at a preliminary hearing, found the claimant disabled throughout the period from September 2016 to September 2017.