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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’.
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.
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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