Tough v Revenue and Customs (Practice and Procedure – Strike Out): EAT 14 Feb 2020

The Claimant’s claims of direct disability discrimination and harassment had been struck out after a Preliminary Hearing at which the Employment Tribunal (‘ET’) had determined he was not a disabled person for the purposes of the Equality Act 2010. The Claimant appealed, complaining that the ET had erred: (1) in failing to make findings as to perceived disability discrimination and harassment; and (2) in striking out claims of direct disability discrimination, and harassment related to disability, purely on the basis that it had found that the Claimant was not disabled.
Held: dismissing the appeal
It was a moot point whether there could be harassment related to a perceived disability but that was assumed in the Claimant’s favour for the purposes of the appeal. Adopting that course and further allowing that, unless a complainant has expressly limited their claim to a particular form of direct discrimination or harassment that requires that they first establish that they fall within the definition of a disabled person of the purposes of the EqA, it may not be possible to do justice to the case without properly exploring the employer’s reasoning, it was apparent that the Claimant had so limited his claim in this case. Even if that was unclear from his ET1 (and allowing that the Claimant was acting in person), at an earlier case management stage, he had accepted the question whether he was a disabled person should be determined as a preliminary issue in his case. At the subsequent Preliminary Hearing, listed to consider that question, the Claimant further accepted that a finding that he was not disabled would be determinative of his claims. The ET did not err in determining the case before it.

Citations:

[2020] UKEAT 0255 – 19 – 1402

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 09 December 2022; Ref: scu.652138