The Employment Appeal Tribunal (EAT) held in Niedzielska v Faccenda Foods Limited that a claimant can still succeed in a disability discrimination claim which requires them to show that an action, policy or workplace practice of the employer places them under “substantial disadvantage” under the Equality Act 2010, even if other non-disabled employees also suffered some disadvantage from this, provided that the disadvantage suffered by the other employees was not “substantial”.


Basic facts

Ms Niedzielska went off on sick leave from the end of July 2018 with swollen feet that meant she was unable to walk. Given that she worked her shifts in a cold environment where she needed to be on her feet, this caused her significant problems.

In March 2019, an occupational health nurse wrote a lengthy report about Ms Niedzielska’s health, which concluded that she would not be able to return to work in the next six months. She was subsequently dismissed by reason of medical incapability in April 2019.

As a litigant in person for whom English was not her first language, Ms Niedzielska struggled to articulate the claims she wanted to lodge but the tribunal interpreted her application as including claims for unfair dismissal, discrimination because of something arising in consequence of disability and, possibly, failure to make reasonable adjustments under the Equality Act. This meant that she had to show she had suffered a “substantial disadvantage” at work in comparison with other, non-disabled, employees.


Tribunal decision

At a case management hearing, the tribunal judge agreed to the company’s request to order Ms Niedzielska to provide additional information. As this did not clarify the claim, the company applied to strike it out.

In order to decide whether her discrimination claim had a reasonable prospect of success, the judge established, through a question and answer session, that Ms Niedzielska was claiming that her former employer had failed to make reasonable adjustments such as by providing insulated, waterproof boots rather than purely rubber ones.

However, in the course of explaining her predicament to the judge, Ms Niedzielska said that many of her colleagues at work were suffering from the same problems, as they had to stand in unsuitable footwear. The judge then held that as Ms Niedzielska could not show that she had been put at a substantial (meaning more than minor or trivial) disadvantage compared with non-disabled comparators, her claim of disability discrimination had no reasonable prospect of success, and it was struck out.

The judge also struck out the unfair dismissal claim on the basis that, having received the occupational health report, it was reasonable for the company to conclude that Ms Niedzielska was incapable of carrying out her role or any reasonable alternative.

Ms Niedzielska appealed.


EAT decision

With regard to the disability discrimination claim, the EAT held that the tribunal judge’s reasoning was flawed. The fact that other employees were uncomfortable if their feet were cold and wet did not mean that Ms Niedzielska did not suffer a much greater level of discomfort that caused her a substantial disadvantage, not least because she had arthritis that caused her to have painful and swollen feet. This was not, therefore, an exceptional case that required strike out.

In relation to the unfair dismissal claim, the EAT held that the judge approached the matter as if it was for her to make the final determination, rather than to decide whether the claim had any chance of success. When deciding whether the company had acted reasonably, rather than make careful fact finding, the judge made a number of assumptions and considered them on a summary basis. It was therefore also an error to strike this out.

The EAT remitted the claim to a differently constituted employment tribunal.



This case is a helpful reminder that tribunals should be careful when identifying claims brought by a litigant in person, in particular, when English is not their first language. The EAT considered that it was an error in law not to identify that the claimant was bringing a claim for both discrimination arising from disability and reasonable adjustments, not just the latter.

It is also a reminder that, at the preliminary stages of proceedings and when considering strike out, an employment judge should take the claimant’s case “at its highest” (in other words, assume that they can prove the facts of their case).

On the issue of “substantial” disadvantage, the EAT provided useful guidance: “The employment judge had to consider whether, taking the case at its highest, it was arguable that the claimant was put to a substantial, i.e. more than minor or trivial, disadvantage in comparison to non-disabled persons. The fact that any employee would be uncomfortable if their feet were cold and wet did not mean that the claimant, having arthritis that caused painful and swollen feet, was not caused a more than minor or trivial disadvantageous greater level of discomfort”.