Ahmed v The Cardinal Hume Academies

For harassment under section 26 of the Equality Act 2010, a tribunal must consider the claimant’s perception, all other circumstances, and whether it was reasonable for the conduct to have the proscribed effect. The objective reasonableness question is effectively determinative: conduct should not be found to violate dignity or create the prescribed environment where it is not reasonable to regard it as doing so.

Direct disability discrimination requires treatment because of the disability itself. Treatment because of an adverse effect on ability which arises from disability is not, without more, direct discrimination. A comparator must have materially the same abilities, and a tribunal need not identify one where the reason for treatment is clear.

The claimant, a trainee teacher with dyspraxia and severe handwriting difficulties, brought claims for direct disability discrimination, harassment, discrimination arising from disability, and constructive dismissal. He alleged that the headteacher’s questioning about his ability to write on 7 September 2016, and his being sent home on suspension the following day, amounted to disability-related harassment.

The Central London Employment Tribunal dismissed the claims by a majority. It found that the conduct was unwanted and related to disability, but that it was not reasonable to regard either meeting as having the proscribed effect under section 26 of the Equality Act 2010. It also rejected direct discrimination, while finding that the suspension was because of handwriting difficulties arising from disability.

The claimant appealed, principally challenging the Tribunal’s approach to harassment and its distinction between disability and its effects.

1. Appeal dismissed. The Employment Tribunal made no error of law in rejecting the harassment claims.

2. Under section 26(4) of the Equality Act 2010, the tribunal must take account of the claimant’s perception, the other circumstances, and whether it was reasonable for the conduct to have the effect in section 26(1)(b). Applying the guidance in Pemberton v Right Reverend Inwood [2018] ICR 1291, objective reasonableness is effectively determinative. If it was not reasonable to regard the conduct as violating dignity or creating the prescribed environment, it should not be found to have had that effect.

3. The Tribunal had considered all three statutory matters. It was entitled to rely on the claimant’s contemporaneous description of the first conversation as civil, the headteacher’s concern about the claimant teaching nine classes while unable to write for more than a short period, and the explanation that sending him home was temporary while advice was obtained. Its shorthand reference to conduct constituting harassment under section 26(4) did not show that it had applied the wrong test.

4. The direct discrimination ground also failed. Section 6 distinguishes a physical or mental impairment from its substantial and long-term adverse effect on normal day-to-day activities. The Tribunal’s finding that the claimant was suspended because of handwriting difficulty and hand pain was a finding of treatment because of something arising from disability, not because of the disability itself. For direct discrimination, section 23 requires a comparator with materially the same abilities. Where the reason for treatment was clear, the Tribunal was not required to make findings about the proposed comparator.

5. As neither substantive ground succeeded, the constructive dismissal ground, which depended on them, did not arise.

• Employment Appeal Tribunal. The appeal from the Central London Employment Tribunal was dismissed: [2019] UKEAT 0196_18_2903.
• Central London Employment Tribunal. Dismissed the claimant’s claims of discrimination, harassment and unfair constructive dismissal. No citation was stated in the judgment.