Agbakoko v Allied Bakeries

In a direct-discrimination claim, the decisive issue is the reason why the claimant received the treatment. An unhelpful distinction between suspected and perceived disability cannot affect the result where the tribunal has found that suspension and dismissal were caused by conduct-related concerns and the absence of reliable medical information, rather than disability.

A tribunal may reach different findings when applying section 98 of the Employment Rights Act 1996 and section 13 of the Equality Act 2010. The former concerns the employer's potentially fair reason for dismissal; the latter asks whether the treatment was because of the protected characteristic.

The claimant had been employed by the respondent from 2008 until his dismissal on ill-health grounds in May 2012. The Manchester Employment Tribunal upheld his ordinary unfair-dismissal complaint on procedural grounds, but awarded no compensatory sum. It dismissed his disability-discrimination complaints.

The claimant appealed. Following a preliminary hearing, only two grounds proceeded: whether the Tribunal had erred by distinguishing suspected from perceived disability, and whether its finding of ill-health capability as the reason for dismissal was inconsistent with its findings on the discrimination claim.

The central issue was whether the Tribunal's findings disclosed treatment because of actual or perceived disability.

1. Appeal dismissed. Judge Peter Clark held that the Tribunal's distinction between suspected and perceived disability was unhelpful, but it did not undermine the decision.

2. The operative inquiry under section 13 of the Equality Act 2010 was why the claimant had been suspended and dismissed. Applying the reason-why approach formulated in Nagarajan v London Regional Transport [1999] ICR 877, the Tribunal had permissibly found that neither measure was because of actual, suspected, or perceived disability.

3. The suspension followed colleagues' complaints about the claimant's behaviour and the employer's wish to establish whether there was a medical explanation. The dismissal followed concern about that behaviour, the risk of repetition or further illness on return to work, and the inability to obtain clear medical information. Those findings answered the causation question adversely to the discrimination claim.

4. There was no contradiction with the Tribunal's finding under section 98 of the Employment Rights Act 1996 that the employer believed the claimant incapable of performing his duties through ill health. The section 98 inquiry concerned whether the employer had established a potentially fair reason. The section 13 inquiry concerned the reason for the impugned treatment. The Tribunal was entitled to make the respective findings, and to dismiss the direct-discrimination claim.

• Employment Appeal Tribunal: Appeal dismissed.
• Manchester Employment Tribunal: In reasons delivered on 3 February 2014, the Tribunal upheld the ordinary unfair-dismissal complaint on procedural grounds, made a nil compensatory award, and dismissed the disability-discrimination claim.