Ali v New College Manchester Ltd (Disability Discrimination)

An employer’s knowledge of disability requires consideration of both what it actually knew and what it could reasonably have been expected to know. That inquiry concerns the facts and their impact, not merely the diagnostic label.

A provision, criterion or practice must be identified clearly, although tribunals should avoid an unduly technical approach. A party cannot recast the pleaded PCP on appeal to avoid an adverse finding.

For harassment, the employee’s perception, the surrounding circumstances and reasonableness must all be considered. Conduct may be related to conduct or performance rather than disability. In direct discrimination, the decisive inquiry is the causative reason for treatment, not the employer’s objective or motive.

The Claimant, a finance manager, brought claims of direct disability discrimination, failure to make reasonable adjustments and harassment under the Equality Act 2010, together with an automatic unfair dismissal claim. The Manchester Employment Tribunal dismissed all claims in a judgment sent on 19 January 2016.

She appealed, alleging errors concerning the Respondent’s actual and constructive knowledge of her disability, identification of the relevant PCP, the statutory test for harassment, and the distinction between motive, objectives and the reason for treatment in direct discrimination.

The central issue was whether the Tribunal had applied the correct legal tests and adequately reasoned its conclusions on the facts it found.

1. Appeal dismissed. Read fairly and as a whole, the Tribunal’s judgment disclosed no error of law.

2. On knowledge, the Tribunal had considered both actual knowledge and whether the Respondent could reasonably have been expected to know more. Its findings addressed the Claimant’s presentation at work, the impact of her condition and the information available to the Respondent. It had not treated the absence of a diagnostic label as decisive. In any event, it determined each substantive complaint on its merits rather than dismissing it solely for want of knowledge.

3. On reasonable adjustments, the Tribunal was entitled to identify the PCP from the Claimant’s Further Particulars. Although PCPs should not be construed narrowly or technically, clarity is necessary because the PCP determines disadvantage and any required adjustment. The findings established that the Respondent had not required the Claimant to perform all functions of her role and had reduced requirements and provided assistance. The appeal impermissibly sought to reformulate the PCP after the event.

4. On harassment under section 26, the Tribunal considered both purpose and effect. It took account of the Claimant’s perspective, the overall working environment and whether the alleged effect was reasonable. Where conduct had a relevant effect, the Tribunal permissibly found that it was related to the Claimant’s unreasonable, confrontational conduct and threatened resignation, rather than to disability. This was not the application of a causation test.

5. On direct discrimination, the Tribunal’s reference to legitimate objectives formed part of its factual background. It nevertheless identified the causative reasons for the treatment: conduct, performance, resolving departmental difficulties and breakdown of trust and confidence. The treatment was not inherently discriminatory and was not because of disability.

• Employment Appeal Tribunal: Appeal dismissed.
• Manchester Employment Tribunal: Dismissed the claims of automatic unfair dismissal, disability discrimination and harassment; judgment sent on 19 January 2016.