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The meaning of "long-term" in the definition of disability

A Discrimination case shows why the Equality Act is failing people with mental health problems.

Readers of this newsletter will know that we at Mind have a problem with the definition of disability in the Equality Act 2010 ("EqA"). We wrote about it back in September 2019 when we outlined the work Mind was doing on discrimination in the workplace. Well, this February a case was decided in the Employment Appeal Tribunal ("EAT") that illustrates some of the concerns we were articulating last year.

Mrs. Tennant was employed by Tesco as a checkout manager at a store. She began to experience anxiety and depression in September 2016. She alleged she had been discriminated against because of her disability at several points during the course of 2016 and 2017. She brought a claim to an Employment Tribunal ("ET") in September 2017. At the time of the ET hearing her depression had lasted well over a year from September 2016.

The EqA defines disability as a physical or mental impairment that "has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities". "Long-term" is further defined in a schedule to the EqA which says:-

"2(1)The effect of an impairment is long-term if—

(a)it has lasted for at least 12 months,

(b)it is likely to last for at least 12 months, or

(c)it is likely to last for the rest of the life of the person affected."

There are several things to note. First, there Mrs. Tennant put forward no evidence from between September 2016 and 2017 about the likelihood of how long her mental health problems would last. Second, when assessing whether someone is disabled, the law says that you judge this at the time of the alleged discrimination – so in this case it was at points during 2016 and 2017. The ET looked at the fact that her depression had lasted for well over 12 months from September 2016 and concluded that she was therefore disabled at the points in 2016 and 2017 when she was discriminated against.

The EAT, however, found that this was an error or law. At each of the points in time in 2016 and 2017 when she said that she had been discriminated against it could not be said that her depression had lasted for 12 months. She also had no evidence that at those points in time it was likely that her depression would last for 12 months. So, despite the fact that her depression did in fact last for 12 months and in hindsight was clearly long-term, because you judge whether someone is disabled at the point at which they say they have experienced discrimination, her impairment was not long term according to the law.

It seems an absurdity that the law finds what was clearly a long-term condition not a long-term condition. We also think that this law probably disadvantages people with mental rather than physical problems. The reason is this: if your mental health problem hasn't lasted 12 months at the time you feel you have been discriminated against you have to show that it is likely to last 12 months. But people with mental health problems, understandably, often do not want to think of their problems as being likely to last for extended periods into the future. Also, the medical professionals who treat them will often focus on their recovery and will not want to encourage the belief in their patient that their problems will extend for long periods. Even if people are able to think of their problems as likely to continue for long periods, there are actually strong incentives for them to downplay the possibility of a long-term impairment for the sake of their future employment prospects. People want to be telling their employers that they are fit for work as soon as possible rather than having problems extending into the future. For all these reasons, it is entirely unsurprising that Mrs. Tennant did not produce any evidence that her depression was, at the points in time when she claims she was discriminated against, likely to last for 12 months.

An appeal seems unlikely in the Tennant case, so we are stuck with the law as it stands, which serves people with mental health problems very poorly. Mind will continue to campaign for the government to stick to the pledge made by Theresa May's government to reform the Equality Act so that it works better for people with mental health problems.

If you are involved in a case which concerns the definition of disability under the EqA, please get in touch at [email protected] to discuss whether we are able to support your case in any way.

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