Tough v Revenue and Customs

A claim of direct discrimination because of disability need not be expressly labelled as a claim based on actual, perceived, or associative disability. Subject to the statutory cause of action, the material question may be whether disability was relied upon in the employer’s reasoning. A preliminary determination that the claimant is not disabled may therefore not dispose of every direct-discrimination claim.

However, an Employment Tribunal must determine the claim actually advanced. It may have regard to the pleaded case, the agreed or unchallenged list of issues, and the claimant’s express acceptance of the consequences of a preliminary issue. It must not enter the factual and evidential arena to devise an unadvanced alternative claim for an unrepresented party.

The claimant alleged disability discrimination and harassment following the termination of his employment. At a case-management preliminary hearing, the issues were formulated on the basis that the claimant’s claims depended upon his establishing disability under the Equality Act 2010.

At a subsequent preliminary hearing, the Employment Tribunal held that his depression was not a long-term impairment. It struck out all claims after recording that both parties accepted that this conclusion was determinative. The claimant did not challenge the disability finding. On appeal, he contended that the Tribunal should also have considered direct discrimination and harassment based on the respondent’s perception that he was disabled.

1. Appeal dismissed. The Employment Tribunal was entitled to decide the case as the claimant had put it. Its finding that he was not disabled was determinative of the claims which he had advanced and agreed should be determined at the preliminary hearing.

2. The Employment Appeal Tribunal accepted that a claimant need not use the label “perceived disability” to advance a direct-discrimination claim. It also proceeded, without deciding the point, on the assumption that harassment related to a perceived disability could be pursued under section 26 of the Equality Act 2010. In a suitable case, a preliminary issue concerning whether the claimant is disabled may be unhelpful because direct discrimination, and potentially harassment, turns on the employer’s reasoning rather than solely on the claimant’s actual status.

3. That broader possibility did not assist this claimant. His ET1 did not identify a factual case based on the respondent’s perception. At case management, the issues were formulated so that actual disability was a necessary premise. He did not seek to vary that formulation, and at the preliminary hearing he accepted that an adverse disability finding would determine his claims.

4. An Employment Tribunal is not rigidly confined by a list of issues and must have due regard to the pleaded case. But it may properly rely on an unchallenged list and on the claimant’s explanations of the case being advanced. It must not construct a new factual and evidential case for an unrepresented litigant. Although a management remark about mental illness might have supported a potential perception-based claim, the claimant had not relied upon it in that way.

• Employment Appeal Tribunal: dismissed the claimant’s appeal on 14 February 2020.
• Employment Tribunal, North Shields: at a preliminary hearing on 22 November 2018, held that the claimant was not a disabled person for the purposes of the Equality Act 2010 and struck out the claims. Written reasons followed on 11 December 2018.