Discrimination due to Disability

Peninsula Business Services v Baker

The Employment Appeal Tribunal (EAT) held that a Claimant cannot successfully claim harassment by simply asserting s/he has a disability without establishing s/he is disabled under the Equality Act 2010.

The Claimant was employed as a tribunal representative by Peninsula. In January 2014, he told his advocacy manager he had dyslexia. A psychologist's report confirmed this and an occupational health report in August 2014 suggested he may be disabled.

Peninsula's director of legal services grew concerned the Claimant was not devoting his time to his work and instructed external consultants to conduct covert surveillance.

The Claimant complained that being subjected to surveillance constituted harassment on grounds of disability. The Employment Tribunal found for the Claimant but, acknowledging it was not asked to determine disability, found "on the basis that the Claimant may well have been disabled" that the trigger for the decision to engage in surveillance was an assertion of disability.

Overturning the decision, the EAT held that discrimination protection is not available to those who merely assert a disability. The protection applies only to those who have a disability, to those associated with a disabled person, or to those who are wrongly perceived to be disabled.

In Practice

This decision is plainly right, otherwise employers could face many claims in which a worker could succeed with a disability discrimination claim merely by asserting they are disabled. There has to be more than that and the claimant will need to provide evidence of being disabled if it is at all disputed by the respondent.

At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Paul, Kate or Andrew will be happy to discuss it with you.