A physical or mental condition only amounts to a disability under the Equality Act if it is "long term" in the sense of having lasted or being likely to last at least 12 months. Tesco Stores Ltd v Tennant confirms that employees cannot succeed in discrimination complaints that relate to acts occurring before a condition amounts to a disability.
Mrs Tennant suffered from depression from early September 2016. In September 2017 she brought disability discrimination claims in relation to various matters arising between September 2016 and September 2017. The employment tribunal found that those claims could proceed because she had been suffering from a disability throughout the relevant period.
The employer successfully appealed to the EAT. The correct approach was to consider whether the employee was disabled for the purposes of the Equality Act at the time of the events complained of. In this case Mrs Tennant's depression had only lasted for 12 months at the start of September 2017. She could not bring a disability discrimination claim in relation to a period before her condition satisfied the definition of a disability.
Employers should be wary of placing too much reliance on this decision. An employee will also be regarded as disabled from the point at which their condition is likely to last 12 months, assuming it has a substantial adverse impact on normal day to day activities. In Mrs Tennant's case, the tribunal does not seem to have heard evidence about the point between September 2016 and September 2017 at which her condition was likely to last 12 months. In many other cases it will be clear at a relatively early stage that a condition is likely to last for the relevant period and a disability discrimination claim could be brought in relation to events occurring once that stage is reached.
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