by
Ryan Clement, barrister
In the Employment Tribunal case of Hussain v Armstrong Watson LLP, the tribunal ruled that the ClaImant’s case for unlawful disability-related discrimination under section 15 of the Equality Act 2010 was successful. It found that he was subjected to unfavourable treatment due to his epilepsy, which impacted his memory, concentration, and processing ability.
It’s important to grasp that discrimination arising from disability, contrary to section 15 of the 2010 Act is not the same as direct discrimination, contrary to section 13 of the same Act. The latter is based on the concept of treating the complainant less favourably because of the protected characteristic in question, whilst the former is based on treating the complainant unfavourably because of something arising in consequence of the complainant’s disability and, having done this, the respondent cannot show that the said unfavourable treatment was a proportionate means of achieving a legitimate aim. See Days Four and Five of Discrimination in Employment Law in 7 Days.
Discrimination Arising from Disability in the workplace
In the case of Hussain, the Claimant was employed as a Tax Compliance Assistant by the Respondent for less than two months, from July to September 2023. He disclosed his condition, temporal lobe epilepsy, which caused frequent focal seizures that affected his ability to process information and complete tasks efficiently. Despite providing detailed reports about his condition and requesting reasonable adjustments, including extra time to complete tax returns, the tribunal found that the Respondent failed to accommodate his needs adequately.
The Respondent repeatedly questioned the Claimant’s performance, particularly the time he spent on tax returns and his inability to meet the firm’s 80% utilization target. Concerns about his efficiency were raised during multiple meetings, culminating in a probationary review meeting scheduled for 28 September 2023. A letter sent to the Claimant ahead of the meeting stated that dismissal was a possible outcome due to performance concerns but failed to mention that his request for reasonable adjustments would be discussed. Feeling unsupported and fearing imminent termination, the Claimant resigned on 27 September 2023.
The tribunal concluded that the Respondent’s actions were not a proportionate means of achieving its legitimate business aim of ensuring efficient and profitable operations. While the company had a legitimate interest in ensuring timely and cost-effective work, it failed to balance this with its legal obligation to accommodate the Claimant’s disability. The tribunal ruled that the the Respondent’s treatment of the Claimant amounted to unlawful discrimination arising from his disability.
For completion, I should state that the Claimant had raised specific complaints on the same issues under a failure to make reasonable adjustments. However, in this respect, the tribunal recorded, “In light of the findings in respect of the section 15 claim, the Tribunal considers that it is neither necessary nor proportionate to reach a decision on the claimant’s complaint of a failure to comply with the section 20/21 duty to make reasonable adjustments. That complaint relates to exactly the same matters as the section 15 complaint and is an alternative way of asserting that the respondent acted unlawfully in regard to those matters. The Employment Appeal Tribunal commented in Carranza v General Dynamics Information Technology Ltd [2015] ICR 169 that cases brought as reasonable adjustments complaints are sometimes better analysed using section 15. This is such a complaint and is better expressed and dealt with under section 15, and to make findings under section 20/21 would add nothing in terms of outcome and possible remedy and would be a disproportionate use of the Tribunal’s time.”
Finally, therefore, whether one is in a probationary period or not, which generally means there would often be a term in many contacts of employment that employers can dismiss employees, during the latter’s probationary period without following their disciplinary process and procedures, as there is no qualifying period, during which one can be lawfully discriminated against, employers must be vigilant not to discriminate against employees at any stage of their employment whether during or post-probationary.
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Ryan Clement 