Assertion of disability
Labour & European Law Review Weekly Issue 516 20 April 2017
In order to claim harassment related to disability, the Employment Appeal Tribunal (EAT) held in Peninsula Business Service Ltd v Baker that claimants cannot just assert that they are disabled. Rather, they have to prove that they have a disability under section 6 of the Equality Act.
Mr Baker’s union, Unite the Union, instructed Thompsons to act on his behalf.
Mr Baker, a lawyer, who worked from home, told his employer, Peninsula, in January 2014 that he had dyslexia. In June that year he told them that because of his disability, it took him longer to do certain things. Shortly after that he showed his manager a psychologist’s report which referred to a “specific learning disability”. In a telephone conversation shortly afterwards, Mr Baker told his manager that his condition had got worse and that he was struggling to cope.
He was then seen by Peninsula’s occupational health provider who said that he was likely to be considered disabled and recommended reasonable adjustments. Mr Baker asked for an extra advocate for one his cases, as well as advising that he was unable to take on two cases at short notice and asked for them to be reallocated. However, his requests were refused partly because his manager believed that Mr Baker had engineered the report in his favour. In September the company subjected him to covert surveillance because it thought he was moonlighting, as a result of which it was found that he went to his mother’s house on four out of five days for hours at a time.
After being subject to a disciplinary hearing and receiving a warning for not devoting all of his working time to Peninsula’s business, Mr Baker brought claims of harassment related to disability and victimisation based on various “protected acts”.
The tribunal held that neither the decision to put Mr Baker under surveillance, nor the surveillance itself, amounted to harassment, because he did not know about them at the time. However, telling Mr Baker about the surveillance for disciplinary purposes constituted harassment as it created a hostile and degrading work environment.
The harassment was related to his disability because the trigger for the decision to engage in covert surveillance was when Mr Baker told his manager that he was disabled. Peninsula had also victimised him as the three disclosures he made (telling his manager that he had a disability; showing him the psychologist’s report; and the telephone conversation when Mr Baker admitted he was struggling) were protected acts.
The EAT rejected the Tribunal’s reasoning on harassment holding that it was not enough for Mr Baker to simply assert that he was disabled. Instead, section 6 of the Equality Act required him to prove that he had a “physical or mental impairment that has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities” which he had not done. The EAT determined that the best protection for claimants who allege that they have a protected characteristic and have been disadvantaged as a result is victimisation. The tribunal was therefore wrong to conclude that Mr Baker could make a claim of harassment based on a disability which he claimed but had not proved.
It also overturned the tribunal’s decision on victimisation, holding that its findings of fact were insufficient to support the conclusion that Peninsula had victimised Mr Baker. The tribunal was also wrong to hold that Peninsula was liable for surveillance carried out by its agent, who did not know anything about the protected acts relied on by Mr Baker. The EAT determined that although section 109 of the Equality Act makes a principal liable for anything their agent does within the scope of their agency, the principal is only liable if the agent actually breaches the 2010 Act which is not possible if the agent was unaware of the protected acts.
Charlotte Moore, the solicitor instructed in this case commented that: Mr Baker had provided evidence of disability but it had been agreed between the parties and the tribunal early in proceedings that establishing disability was not required for harassment arguments. In its judgment, the tribunal made strong indications that had they been asked to determine the issue of disability, they would have found Mr Baker satisfied the definition under section 6 of the Equality Act.
The EAT’s judgment raises important issues on the interpretation of unlawful harassment and victimisation under the Equality Act, which are adverse to claimants and increases the burden on them when trying to argue harassment related to disability, and victimisation. As a result the case has been appealed to the Court of Appeal.