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Disability cannot just be alleged

Posted on 13th September 2017
Case law

The Employment Appeal Tribunal (‘EAT’) found a claim for harassment connected to disability could not succeed based on an asserted disability. Disability had to be proved (or conceded).

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Julie Temple Julie
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Baker v Peninsula Business Services Ltd [EAT] 2017

The Facts

Mr B had worked for Peninsula for 5 years as a lawyer representing clients in tribunal cases. Peninsula allowed him to carry out some private work.

In January 2014 Mr B told his manager that he had dyslexia. Later, in June 2014, he told another manager that he may not be able to cover a case as he had a disability and it took him longer to do certain things.  Before a scheduled call to discuss things, Mr B gave Peninsula a report stating he was dyslexic and this was a ‘learning disability’.
Mr B was referred to occupational health and the report recommended various reasonable adjustments. It also said that Mr B was likely to be disabled.

There was a suspicion Mr B was carrying out work elsewhere when he should have been working for Peninsula and a third manager arranged covert surveillance of him. The covert surveillance found no evidence he was working elsewhere.

Mr B claimed the surveillance and various other acts were harassment (and victimisation).  The employment tribunal was not, however, asked to decide whether he was a disabled person and this had not been conceded by Peninsula.  The employment tribunal held, however, that the trigger for the surveillance was Mr B’s assertion he had a disability and this was a ‘clear case of harassment related to disability’. 

Peninsula appealed.

The EAT decision

Mr B relied solely on his assertion that he had a disability to pursue his claims.  The EAT, however, held that Mr B could not succeed in his claim for harassment without first establishing that he was, in fact, disabled. His claim for harassment failed.

In practice

Although there was no requirement for Mr B to establish that he was disabled, the EAT concluded that the employment tribunal had been wrong to decide that the surveillance had been ordered because Mr B had done a protected act, namely asserted he was disabled and that adjustments should be made. 

It is also worth remembering that protection against harassment is not just for those who have a disability.  For example, a person is protected if the discrimination is because they are associated with someone who has a disability or they are wrongly perceived to have a disability, but this was not argued by Mr B in this case.

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