Disability and twelve month ‘rule’

Can a Claimant rely on detriments taking place during the 12 month period after which they qualify as disabled?

No, held the EAT in Tesco Stores Limited v Tennant.

The Claimant, a checkout manager, was absent from work due to depression from September 2016 onwards. She brought various claims of disability discrimination, relying upon events which took place between September 2016 and 11 September 2017 (when she presented her claim).

The tribunal held that the Claimant was a disabled person on the basis that she suffered from an impairment (depression) and that it had had a substantial effect on her from September 2016. The effect of an impairment is long-term if (a) it has lasted for at least 12 months, (b) is likely to last for at least 12 months, or (c) is likely to last for the rest of the person's life (paragraph 2 of Schedule 1 of the Equality Act 2010). The tribunal decided that it had lasted for at least 12 months, ground (a), and that she was a disabled person from September 2016. Separately, the tribunal found no evidence on prognosis to suggest it was likely to last more than 12 months, or the rest of the Claimant's life.

The EAT disagreed. Logically, the tribunal could only have found that the effect was long-term on the basis that it had lasted for 12 months from September 2017. Before that, the effect had not lasted 12 months (and there was no evidence to suggest it was likely to). Therefore, the EAT substituted a finding that the Claimant was disabled from 6 September 2017. Since the relevant period was then up to 11 September 2017, this would severely limit the scope of the Claimant's claim.