Herry v Dudley Metropolitan Borough Council

For disability under Equality Act 2010, the tribunal must assess the effect of all relevant impairments in combination. It may evaluate evidence concerning the claimant’s ability to perform activities during the material period, in its wider factual context. The claimant must nevertheless prove an adverse effect on normal day-to-day activities that is more than minor or trivial.

A procedural failure in an internal appeal may amount to a detriment for victimisation purposes even if it would not have altered the substantive result. The claimant must still establish causation. In unfair-dismissal cases, the tribunal must assess the employer’s decision and procedure as a whole under section 98(4). A denied appeal hearing is material but does not inevitably make the dismissal unfair.

The claimant, a teacher dismissed for gross misconduct, brought claims of disability discrimination, victimisation, wrongful dismissal and unfair dismissal. The Birmingham Employment Tribunal found that his dyslexia did not have a substantial adverse effect on normal day-to-day activities during the material period. It also found that the respondent had improperly denied him an oral dismissal appeal, but that the defect was unrelated to protected acts and did not make the dismissal unfair.

He appealed to the Employment Appeal Tribunal. The central issues were whether the Tribunal had properly assessed disability, whether it had addressed the procedural denial of an appeal hearing as alleged victimisation, and whether it had applied the correct test of procedural fairness.

1. Appeal dismissed. The Employment Tribunal made no error of law and reached conclusions open to it on the evidence.

2. On disability, the Tribunal had kept its focus on the material period. It was entitled to consider occupational-health advice that the claimant could return to teaching, the GP fit note and his application to return to his former post. Those matters were part of the evidential context and did not amount to reliance on an irrelevant earlier period.

3. The Tribunal had expressly considered the combined effect of dyslexia, stress, anxiety and alleged depression. It accepted some adverse effect from dyslexia, but was entitled to find no evidence establishing a substantial effect on the claimant’s ability to carry out normal day-to-day activities. The statutory threshold under Equality Act 2010 was therefore not met.

4. On victimisation, the failure to provide an appeal hearing could in principle be a detriment, notwithstanding that the appeal outcome might have been unchanged. Read holistically, however, the Tribunal’s finding that the panel’s decision was not motivated or affected by protected acts applied both to refusing a hearing and to dismissing the appeal. A procedural error, together with protected acts, did not by itself require an inference of causation. The Tribunal had sought and accepted a non-discriminatory explanation.

5. On unfair dismissal, the Tribunal’s observation that an appeal hearing would not realistically have altered matters risked substitution if read alone. But it had also considered the panel’s contemporaneous reasons and the disciplinary process overall. The failure to provide a hearing was material but did not inevitably render the dismissal unfair. The Tribunal permissibly concluded that the respondent had acted within the range of reasonable responses under section 98(4) of the Employment Rights Act 1996.

• Employment Appeal Tribunal — dismissed the claimant’s appeal and upheld the Birmingham Employment Tribunal’s dismissal of the disability discrimination, victimisation, wrongful dismissal and unfair dismissal claims.
• Birmingham Employment Tribunal — held that the claimant was not disabled within section 6 and Schedule 1 of the Equality Act 2010; dismissed the discrimination and victimisation claims; and found the dismissal fair and lawful. No citation was stated.