Employee could not claim disability harassment only on the basis of her assertion she was disabled (EAT)

Facts

Miss Baker was a lawyer for Peninsula and regularly took on private cases with the permission of her employer. She made a number of assertions, over a period of around 10 months that she was disabled (specifically, dyslexic) and was taking longer to get through her work. Her dyslexia was confirmed by a psychologist.

Peninsula offered Miss Baker reasonable adjustments and had meetings with her to discuss this. However, they had concern that she was aiming to build up a private case load and was not carrying out her duties or devoting her full time and attention to his work for Peninsula.

Peninsula instructed a private company to conduct covert surveillance on Miss Baker over a period of 5 days. The surveillance confirmed the concerns.

Miss Baker, on being told about the surveillance during a disciplinary hearing, claimed that she had been subject to harassment and victimisation on grounds of her disability.

Miss Baker was successful in her claim at the tribunal.

Decision

The EAT overturned the tribunal’s decision.  While Miss Baker had asserted her dyslexia was a disability, she hadn’t proven it.  She should have proven her condition was a disability, pursuant to the definition of disability in the Equality Act 2010.  Without doing so, her claim could not succeed.

This case emphasises the importance of determining the question of disability at an early stage in proceedings.

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