Backdating Disability Status – Sometimes Easier Than It Sounds (UK)
As soon as your employee announces that he is suffering from a mental health condition, there is a temptation on the part of both employer and employee to assume that he is thereby necessarily disabled under the Equality Act and so that with immediate effect he is entitled to all the protections available under it. However, even if you do not dispute the fact of his condition, is he right? In some parts yes, but in others (says the EAT in Tennant v Tesco Stores this month), potentially not.
In the usual course, an employee will count as disabled when his impairment is “long term”. That means in broad terms that it must either: (a) have lasted 12 months; or (b) be expected to last 12 months.
In Tennant, the EAT considered the position of someone whose condition had indeed lasted 12 months, but where there was no evidence that it had been expected to do so. The treatment which Tennant alleged to be discriminatory had taken place during that 12 months, so the question was whether she could be discriminated against on disability grounds during that “waiting period”. In effect, was the fact that she had shown herself disabled at the end of that period retroactive in its effect?
On the facts, no. Because there had been no evidence on which the Tribunal could find that her condition could reasonably have been expected to last a year, the only basis for the conclusion that she was disabled had to be under (a) above, i.e. that the impairment had actually lasted 12 months. Until it had done so, she was not disabled, and so no protection against direct discrimination or any obligation to make reasonable adjustments arose.
Lessons for employers
However, and this was not part of Tennant, that reasoning would not apply to a victimisation claim. Under Section 27 Equality Act, that protection arises where the employee does a “protected act”. That includes “making an allegation (whether or not express) that [the employer] has contravened this Act”. He might raise his illness in the context of defending allegations of poor performance or misconduct, for example, and argue that by picking him up on those things, his employer was discriminating against him, and/or had failed to make the adjustments necessary for him to meet the necessary standard.
It is well established that such an allegation is a protected act even if it is objectively incorrect, unless it is made in bad faith. “Bad faith” in the circumstances would mean that the employee knew at the time he made that complaint that he was not disabled, and/or that his illness actually had no bearing on his poor conduct or performance. Especially where mental health issues are concerned, proving one of those is a very high hurdle for the employer. The condition makes it even harder than usual for it to get inside the employee’s head and expose his thought processes convincingly enough to the Employment Tribunal. In addition, it faces a real risk of compounding any injury to feelings by the assertion implicit in defending a victimisation claim on that basis, i.e. that the employee was lying. Not just confused or wrong, that is, but actively lying. Therefore an employee whose disclosure of a putative disability is accompanied or followed by an allegation that the employer is in breach of some Equality Act duty connected with it, can (despite Tennant) gain a level of protection against detriment without waiting until he becomes actually legally disabled.
Would the employee also be protected against disability-related harassment under Section 26 during that waiting period, or is it open season until the 12 months are up? There is no need for a harassment claimant to possess the particular personal characteristic protected under Section 26. Therefore if an employee were mocked or excluded by his management or peers because they believed him to have a serious mental health issue, then that would be actionable even if it had not yet lasted long enough to become a disability or, in fact, never became so at all.
What about his position under Section 15 Equality Act, then? Can he also make a claim in respect of unfavourable treatment during that waiting period because of something arising in consequence of his disability (for example, the pre-emptive strike on performance or conduct management procedures mentioned above)? No – Section 15 requires the “something” to arise from the disability, so unless and until he is properly disabled at law, that “something” doesn’t qualify.
So Tennant is a very sensible outcome on the facts, but beware – it does not in any way give carte blanche for the unfavourable treatment of an employee because he has said he is unwell but the condition has not yet lasted 12 months.