Foster v Cardiff University: EAT 27 Mar 2013

The Claimant is employed as an academic at the Respondent university’s business school and suffers from Chronic Fatigue Syndrome, a recognised disability. The Employment Tribunal dismissed the Claimant’s complaints of disability discrimination and harassment. The core of the case concerned an alleged breach of the duty to make reasonable adjustments in the allocation of teaching requirements for the academic year 2010-11. On the appeal the Claimant argued that there were numerous errors in the approach taken by the Employment Tribunal. Two points of law in particular were emphasised. First, that the Tribunal had erred in not having regard to the effect which anxiety and stress had on the Claimant’s disability; and, secondly, that the Tribunal was wrong to conduct a comparison exercise between the Claimant and a person who did not have her disability. Although that approach was supported by domestic authority, it was argued that it was incompatible with the requirements of Council Directive 2000/78/EC, in particular Article 5, on the duty to make reasonable accommodation.
Held (1) The Tribunal was not required to examine the causes of the Claimant’s disability but only its effects. Anxiety and distress were not part of the Claimant’s disability although they could trigger it or exacerbate it.
(2) The Tribunal was correct to follow earlier decisions of the Employment Appeal Tribunal, which require a comparison to be done, in the context of the duty to make reasonable adjustments, between the Claimant and a person who does not have the relevant disability. Such an approach is not incompatible with Directive 2000/78/EC, in particular Article 5.


Singh J


[2013] UKEAT 0422 – 12 – 2703




Council Directive 2000/78/EC


England and Wales

Employment, Discrimination

Updated: 17 November 2022; Ref: scu.472849