Disability cannot just be alleged

Baker v Peninsula Business Services Ltd [EAT] | 2017

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.

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.

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.