Disability Discrimination Grounds 1 and 2 are dismissed. In the absence of bad faith, communication between a manager and HR to obtain advice would not in normal circumstances amount to a substantial disadvantage for the purposes a reasonable adjustments claim pursuant to section 20 EqA 2010.
Ground 3. An employment tribunal is required to identify the PCP in a reasonable adjustments claim in order to identify whether it causes a substantial disadvantage to a disabled employee because of that employee’s disability. Identifying the PCP by working back from the disadvantage alleged creates the danger of circular reasoning. The liberal approach given to the meaning of PCP (Nottingham City Transport Ltd v Harvey UKEAT/0032/12; Lamb v Business Academy Bexley UKEAT/0226/15; Carreras v United First Partners Research [2018] EWCA Civ 223 applied) shows that the tribunal is seeking to identify an expectation of the employee by the employer where the expectation applies to other employees or is repeated (or would be) with the particular employee. Having identified the PCP the tribunal should ask whether the PCP causes a substantial disadvantage and if so what step would be reasonable for the employer to have to take to alleviate it.
Ground 4 The tribunal fell into the error described in Risby v London Borough of Waltham Forest UKEAT/0318/15/DM. It did not consider whether the Claimant’s conduct was a consequence of his disability in the broadest sense. The Tribunal also misidentified the consequence of disability; the unfavourable treatment could not also be a consequence of the disability.
Citations:
[2022] EAT 107
Links:
Jurisdiction:
England and Wales
Employment
Updated: 18 July 2022; Ref: scu.679494