The Employment Appeal Tribunal (EAT) has upheld a man's appeal against the rejection of his...
The Employment Appeal Tribunal (EAT) has upheld a man's appeal against the rejection of his complaints of discrimination arising from disability and victimisation (Shah v Home Office).
The man had been employed by the Home Office. He had been off sick for a period of more than six months, suffering from depression. He later applied for a post as an Immigration Liaison Officer. He ticked a box on the application form indicating that he wished to be considered under a policy whereby disabled job applicants were guaranteed an interview if they met the minimum criteria. Where he was asked to supply his line manager's email address he gave his own instead, so that an email to obtain validation of his application was sent to him instead of his line manager.
The recruiting manager for the post noticed that he had supplied his own email address and contacted his line manager, who expressed the view that he might be falsely claiming to be disabled to obtain an interview under the guaranteed interview policy. An investigation was conducted, which concluded that there was nothing to suggest a deliberate intention to mislead or misrepresent. He subsequently brought a number of Employment Tribunal (ET) complaints, including discrimination because of something arising in consequence of disability under Section 15 of the Equality Act 2010 and victimisation under Section 27 of the Act.
Dismissing his disability discrimination complaint, the ET found that the investigation had been initiated because the Home Office had had doubts about his honesty. Those doubts had arisen both because he had ticked the box for the guaranteed interview policy and for other reasons not related to disability. The ET also found that ticking the box had not been a protected act for the purposes of Section 27 and dismissed his victimisation complaint.
He appealed to the EAT, arguing that the ET had erred in focusing on the Home Office's motivation in terms of their suspicions of untruthfulness, and had failed to consider whether disability had a sufficient influence on their action so as to satisfy the causal connection required by Section 15. He also argued that the ET had erred in concluding that ticking the box for the guaranteed interview policy was not a protected act within Section 27 when it involved the assertion that he was disabled and thereby eligible for the adjustment afforded by the policy.
The EAT noted that the ET had found that he had ticked the box because he was disabled and that ticking the box was something arising from his disability. The fact that his line manager had had a genuine, albeit erroneous, belief that he was being dishonest did not prevent his disability from being an effective cause of the unfavourable treatment. The EAT substituted a finding of discrimination arising from disability. The question of whether the Home Office had known or could reasonably have been expected to know that he had a disability was remitted to the ET.
Section 27(2)(c) of the Act provides that anything done for the purposes of or in connection with the Act is a protected act. In finding that the man had not done a protected act, the ET had overlooked the fact that his application under the guaranteed interview policy was in connection with Sections 158 and 159 of the Act, which are about positive action in respect of people with protected characteristics. That issue was also remitted to the ET.
