XYZ v Birmingham City Council

For discrimination arising from disability, the employer must know, or reasonably be expected to know, the facts constituting the relevant disability, but need not know that the reason for the treatment arose from that disability. Where a disciplinary process continues after information may have changed the employer’s knowledge, the tribunal must consider whether that continuing treatment is unfavourable and whether it is justified. Constructive discriminatory dismissal requires the employee to resign in response to the unfavourable treatment that was because of something arising from disability. In deciding whether to extend time, a tribunal must consider relevant evidence about the delay, including material in a witness statement or closing submissions.

The Claimant, an employee of Birmingham City Council, resigned after disciplinary proceedings arising from a workplace incident. He had disclosed diagnoses including PTSD during the proceedings. The Respondent admitted unfair dismissal, but the Employment Tribunal dismissed the remaining disability and age discrimination claims, including constructive discriminatory dismissal claims. It also refused to extend time for otherwise successful age discrimination complaints.

The Claimant appealed seven aspects of the Tribunal’s reserved judgment dated 22 July 2024. The appeal concerned disability-related harassment, discrimination arising from disability during and after disciplinary proceedings, the connection between discrimination and constructive dismissal, the burden of proof in an age discrimination allegation, and the just and equitable extension of time.

1. Ground One failed. The Tribunal found that Mr Marsh’s conduct was not influenced by a perception that the Claimant was weak or vulnerable. That factual finding disposed of the proposed harassment argument, so the EAT left open whether conduct motivated by perceived vulnerability could be related to disability without knowledge of the disability. The Tribunal also had no general duty to prompt an unrepresented party to expand or modify a claim where doing so might help that party, consistently with Moustache v Chelsea and Westminster Hospital NHS Foundation Trust [2025] EWCA Civ 185.

2. Grounds Two and Three succeeded in part. The relevant disability for the disciplinary-process claim was PTSD. The Tribunal could distinguish it from the Claimant’s anxiety and depression when assessing knowledge; knowledge of the causal link between the disability and the reason for treatment was not required: Pnaiser v NHS England and another [2016] IRLR 170. However, the Claimant’s June 2022 disclosure could have changed the Respondent’s knowledge. The Tribunal had to consider whether continuing the disciplinary process after that point was unfavourable treatment because of something arising from disability.

3. The Tribunal’s justification finding could not safely be applied to that later period. The statutory test required a proper assessment of the treatment’s discriminatory effect against the Respondent’s reasonable needs, including whether less discriminatory steps were available. The EAT could not be satisfied that the Tribunal had carried out that assessment.

4. Ground Four succeeded. The correct question was whether the Claimant resigned in response to unfavourable treatment that was because of something arising from disability, and that could not be justified. The Tribunal had instead asked whether he resigned in response to the something arising itself. The constructive discriminatory dismissal claim therefore also required reconsideration.

5. Grounds Five and Six failed. The Tribunal correctly applied the burden of proof to the allegation that Mr Marsh called the Claimant a grass: it relied on evidence that the reason was the Claimant’s complaint, not his age. It was also entitled to find that the earlier age-related conduct was background, rather than a cause of the resignation, having regard to the resignation letter.

6. Ground Seven succeeded. The Tribunal wrongly said there was no evidence explaining the delay. It overlooked material in the Claimant’s witness statement and misdirected itself about the evidential status of reasons raised in closing submissions, contrary to the ratio of Doherty v The Training and Development Agency for Schools (2009, unreported).

7. The appeal was allowed on Grounds Two, Three, Four and Seven, and dismissed on Grounds One, Five and Six. The disability claims, the constructive discriminatory dismissal claim, and the just and equitable time-limit issue were remitted to the same Tribunal. No further evidence was required, and the EAT found no reason to doubt that the Tribunal could reconsider the issues fairly.

1. Employment Appeal Tribunal [2026] EAT 152 : appeal allowed on Grounds Two, Three, Four and Seven; dismissed on Grounds One, Five and Six. The remitted issues were sent to the same Employment Tribunal.
2. Midlands West Employment Tribunal: reserved judgment dated 22 July 2024 dismissed the claims that remained for determination, apart from claims for which liability had been admitted.