EAT (Disability Discrimination: Direct Disability Discrimination) Reasonable adjustments
DISABILITY DISCRIMINATION – Burden of proof
Neither paragraph 15.5 of the Code of Practice: Employment and Occupation 2004 nor Bowers v William Hill UKEAT/0046/09/DM are authority for the proposition that knowledge of disability in one part of an organisation or on the part of one individual in an organisation means that knowledge can be imputed to the organisation generally or to any or all of its employees for all purposes and in particular in the context of deciding whether there has been discriminatory conduct. On the contrary, paragraph 36 of the Judgment of Underhill LJ in the decision of the Court of Appeal in CLFIS (UK) Ltd v Reynolds [2015] EWCA Civ 439, [2015] IRLR 562 makes clear that in the case of a sole decision maker it is his or her state of mind not the state of mind of those providing information to the decision maker which is material. Consequently the Employment Tribunal had not erred either by focussing on his intention, motive and knowledge or by not imputing the knowledge of disability of the Occupational Health Department to him. In any event there was no evidence that anybody involved in the dismissal process had acted as they had done because of the Appellant’s disability.
Nor had the Employment Tribunal misdirected itself in relation to reversing the burden of proof. Whilst a false explanation of a difference of treatment in the context of a difference in status, particularly if a lie/dishonesty is, as suggested in paragraphs 26 and 27 of the Judgment in Birmingham City Council and another v Millwood UKEAT/0564/11/DM and in The Solicitors Regulation Authority v Mitchell UKEAT/0497/12/MC likely to be ‘something more’ in relation to shifting the burden of proof that need not always be so. Cases depend on their own facts and here whilst one explanation had been exposed as false, the explanation accepted did not assist in establishing a prima facie case of discrimination and the Employment Tribunal had not erred.
Although a ‘practice’ might involve recurrence as suggested by paragraph 21of the Judgment in Nottingham City Transport Ltd v Harvey [2013] EqLR 4 and paragraph 19 of the Judgment in Carphone Warehouse Ltd v Martin [2013] EqLR 481 that was not necessarily so in relation to a ‘provision’ or a ‘criterion’ but in any event the statement by the Employment Tribunal that a ‘one off failure’ could not amount to a PCP was an alternative comment and not a conclusive decision.
An Employment Tribunal only need address the case placed before it. If matters raised in pleadings are not subsequently supported by evidence, the Employment Tribunal is not under any duty to pursue the points raised in the pleadings and cannot be criticised for not having done so.
Hand QC HHJ
[2016] UKEAT 0118 – 15 – 0403
Bailii
England and Wales
Employment
Updated: 12 January 2022; Ref: scu.560989