Asserted Disability Insufficient for Disability Harassment Claim
An employee could not claim disability harassment based purely on their assertion that they were disabled.
An employee could not succeed in a claim of disability harassment without showing that he had a disability, as defined in the Equality Act 2010. An assertion that he was disabled was insufficient. It is therefore important to determine the preliminary issue of whether a claimant is disabled. If they are unable to prove this they cannot progress their claim, although they may be able to bring a victimisation claim.
The employee’s victimisation claim also failed as the employment tribunal had not considered whether the person responsible for the detrimental treatment knew that he had asserted that he was disabled or that he had requested reasonable adjustments. It had also failed to consider whether those were her reasons for treating him detrimentally.
In Baker v Peninsula Business Service Limited, Mr Baker was a lawyer working for Peninsula. He told his manager that he had dyslexia and warned that he might not be able to work on a case due to his dyslexia. He later asserted that he was struggling due to his dyslexia. He provided a psychologist's report confirming his dyslexia and an occupational health doctor confirmed that he was likely to be considered disabled and recommended reasonable adjustments.
The Director of Legal Services, Mrs English, suspected that Mr Baker was not working when he should be and put him under covert surveillance for five days. This revealed him visiting his mother for between one and three hours on four of the five days. She invited him to a disciplinary hearing and provided him with a copy of the surveillance report.
He brought an employment tribunal claim, alleging that putting him under surveillance and/or later telling him that he had been put under surveillance was disability harassment. He also alleged that the decision to put him under surveillance amounted to victimisation resulting from his assertion that he was disabled and his request for reasonable adjustments.
Peninsula had not conceded that he was disabled. Mr Baker argued that it was not necessary for him to show that he was disabled in order to establish disability harassment. The employment tribunal agreed and upheld his claim, ruling that that informing him of the covert surveillance was disability harassment. It also upheld his victimisation claim.
The Employment Appeal Tribunal (EAT) upheld Peninsula’s appeal. Mr Baker could not succeed in a claim of disability harassment without showing that he had a disability, as defined in the Equality Act 2010. An asserted disability was insufficient. The employment tribunal had also failed to give sufficient consideration to Peninsula’s defence that the ACAS Code required it disclose the surveillance report (as it was evidence on which it intended to rely at the disciplinary hearing). The EAT commented that a disclosure made in compliance with the ACAS Code cannot reasonably be found to be harassment.
The EAT also overturned the tribunal’s decision on victimisation. The tribunal had failed to consider whether Mrs English knew that Mr Baker had asserted that he was disabled or that he had requested reasonable adjustments and had failed to consider whether those were the reasons why she ordered the surveillance.
Claimants wishing to bring disability discrimination claims will need to prove that they have a disability as defined by the Equality Act. A mere assertion that they are disabled is insufficient. It is therefore important to determine the preliminary issue of whether a claimant is disabled. If they are unable to prove this they cannot progress their claim. Nevertheless where they have been subjected to a detriment as a result of asserting that they are disabled, they may be able to bring a victimisation claim (even if it turns out that they do not meet the statutory definition of disabled), provided that the assertion was made in good faith, i.e. they did not know it to be false.
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