The Scottish Ministers v James Blair

In a direct disability-discrimination claim, the comparator must share the claimant’s material attendance and performance circumstances, save for disability. Where that comparator would have received the same treatment, and treatment was not because of disability, the claim fails.

A provision, criterion or practice creates the required substantial disadvantage only where it has a more-than-trivial practical effect. A failure to make reasonable adjustments is ordinarily a one-off omission, not a continuing act. Time runs from when the employer could reasonably have been expected to make the adjustment, unless there is a decision refusing it or conduct inconsistent with making it. A tribunal extending time on a just-and-equitable basis must give adequate reasons, including for the delay.

The respondent had been employed on a fixed-term contract as a team leader. His employment ended when the fixed term expired. He brought claims for direct disability discrimination and failures to make reasonable adjustments under the Equality Act 2010.

The Employment Tribunal unanimously upheld the claims, held that they were in time, and listed remedy. The appellant challenged the findings on direct discrimination, the alleged disadvantage caused by its attendance-related provision, criterion or practice, and limitation.

The appeal raised whether the proper comparator would have had the respondent’s performance as well as attendance issues; whether the attendance requirement caused substantial disadvantage; and whether the adjustment claims formed a continuing course of conduct or should be allowed to proceed by an extension of time.

1. Appeal allowed. The direct disability-discrimination claim was dismissed. The Tribunal had not asked whether a non-disabled comparator with the respondent’s relevant attendance and performance issues would have been treated similarly, or whether the treatment was because of disability.

   The proper comparator included the performance difficulties found by the Tribunal. On those facts, the appellant would have extended the probation of a non-disabled employee with the same difficulties. The attendance issues did not cause less favourable treatment because of disability.

2. The claim based on section 20(3) was also dismissed. The relevant PCP treated absences exceeding seven working days as likely to cause concern and potentially justify extending probation. Applying Sheikholeslami, the question was whether it caused more than trivial comparative disadvantage.

   It did not. The appellant ultimately took no action on the disability-related absences. The later probation extension resulted from performance issues which would equally have existed had the attendance matter been resolved before the planned August review.

3. The Tribunal erred in treating the failures to make reasonable adjustments as a single continuing course of conduct. Under Humphries and Matuszowicz, absent a refusal or conduct inconsistent with making an adjustment, time starts when the employer could reasonably have been expected to make it. On the findings, that was no later than the end of September 2021, so the claims were late.

4. The Tribunal's alternative just-and-equitable extension of time was inadequately reasoned. It did not address the length of, or reasons for, delay. The limitation-extension issue was remitted to the original Tribunal for reconsideration.

• Employment Appeal Tribunal: Allowed the appeal, dismissed the direct discrimination and section 20(3) claims, and remitted the just-and-equitable limitation issue.
• Employment Tribunal: In a judgment sent to the parties on 16 April 2024, unanimously upheld claims under sections 13, 20 and 21 of the Equality Act 2010, held them in time, and directed a remedy hearing.