Trevor Farley v Sunderland City Council

A claimant must establish a disability at the material time. A tribunal is not required to analyse the effect of treatment under Schedule 1 where there is no evidence that the treatment was being used at that time and the evidence supports recovery from the relevant illness.

A provision, criterion or practice must be identified broadly and purposively. However, where the alleged practice is a requirement to work in a particular way or place, and the tribunal permissibly finds that no such requirement existed, there is no PCP. The absence of a PCP defeats both indirect discrimination and reasonable-adjustments claims under the Equality Act 2010.

The just and equitable time-extension discretion is broad. Absence of an explanation for delay is not determinative, and an appellate tribunal will intervene only for error of principle or a plainly wrong conclusion.

The claimant, a technical officer, brought Employment Tribunal claims arising from work arrangements in April 2020 during the coronavirus restrictions. Although his original claim alleged age and sex discrimination only, later case management identified disability discrimination claims concerning work at a crematorium and in an office.

The Newcastle Employment Tribunal dismissed the claims. It found that the claimant was not disabled at the material time, that the respondent lacked the requisite knowledge in any event, and that it had not applied the alleged PCPs. It also held the claims out of time and declined a just and equitable extension.

The appeal challenged those findings and the consequential failure to consider proposed reasonable adjustments.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the claimant was not disabled between 6 and 29 April 2020. There was no evidence that he used an inhaler during that period, and the Tribunal had found that his earlier flu-like illness had resolved. It therefore did not have to consider the treatment-measures provision in Schedule 1 to the Equality Act 2010.

2. The finding was also supported by the medical material. There was no formal asthma diagnosis at the material time. The Tribunal permissibly found the claimant’s account of asthma or bronchitis inconsistent with the occupational-health report and medical records, which recorded resolved respiratory illnesses and normal spirometry.

3. The challenge to constructive knowledge consequently failed. In any event, whether an employer could reasonably have been expected to know of a disability was a factual assessment. Applying Donelien v Liberta UK [2018] IRLR 535, the Tribunal’s finding that the managers had only fit notes and occupational-health information insufficient to put them on notice was not perverse.

4. The Tribunal correctly approached the alleged PCPs broadly. The use of the word “requirement” can sometimes narrow the inquiry unduly, as Pipe v Coventry University Higher Education Corp [2023] IRLR 745 explains. Here, however, the claimant’s identified PCPs were requirements to work at the crematorium or office. The Tribunal permissibly found that he volunteered for the former, could withdraw, and was asked rather than required to attend the latter. No alleged state of affairs therefore existed and no PCP had been applied.

5. That finding was fatal to both the indirect-discrimination and reasonable-adjustments claims. No duty to consider the reasonableness of proposed adjustments arose.

6. The refusal to extend time was within the Tribunal’s broad discretion. It did not treat the absence of an explanation as decisive, but considered the substantial delay, the late emergence of the disability claims, the claimant’s familiarity with the Tribunal system, and the merits. Its conclusion was neither erroneous in principle nor plainly wrong.

• Employment Appeal Tribunal: dismissed the claimant’s appeal.
• Newcastle Employment Tribunal: by judgment dated 29 December 2022, sent to the parties on 3 January 2023, dismissed the age and disability discrimination claims and refused a just and equitable extension of time.