Few weeks ago The Employment Appeal Tribunal (EAT) has allowed an appeal against an Employment Tribunal’s finding that an employer’s failure to conduct a reasonable investigation or consider mitigating circumstances when dismissing a disabled employee constituted indirect disability discrimination.
In its consideration of the issues before it, the EAT stated that to establish indirect disability discrimination, it is not sufficient that an employee has been disadvantaged. The starting point is that there must be a provision, criterion or practice (PCP) and the substantial disadvantage must arise out of that PCP.
The EAT found that there was no evidence that the employer made a practice of holding disciplinary hearings in the way it had in respect of the disabled employee. There was therefore no identifiable PCP and a finding that there had been a failure to make reasonable adjustments to a PCP that was not established would make no sense.
Furthermore, there was no evidence that the procedural inadequacies would have caused any more of a disadvantage to the disabled employee than it would to someone who was not disabled.
These issues have been remitted back to the Employment Tribunal for consideration.
The full case can be found here.
Case name: Nottingham City Transport Ltd v Harvey UKEAT/0032/12/JOJ.