Disability discrimination claim against Scottish Ministers remitted back to Employment Tribunal for reconsideration

About this case:

• Citation:
  [2025] EAT 74
• Judgment:
  External link
• Court:
  Employment Appeal Tribunal
• Judge:
  Lord Colbeck

Claimant and respondent James Blair was employed by the appellant on a 23-month fixed term contract, following which he brought a claim against them for disability discrimination and failure to make reasonable adjustments. The appellant challenged the decision in three respects, including errors as to the law and whether it was just and equitable to allow the claim to proceed out of time.

The appeal was heard by EAT judges Lord Colbeck, Margot McArthur, and Gillian Smith. Michael Briggs appeared for the appellant and Thomas Rushton for the respondent.

Single course of conduct

From 23 November 2020 until 21 October 2022, the respondent was employed as a team leader in the appellant’s adult support and protection and EU Exit branch. After an accident in 2010 where the respondent, then employed with Fife Police, was hit by a van, he developed spondylitis, a degenerative disease of the spinal cord. His claim was based on the appellant failing to provide reasonable adjustments for his condition during his employment, and on direct discrimination contrary to section 13 of the Equality Act 2010.

In its judgment of April 2024, the tribunal unanimously held that the appellant directly discriminated against the respondent contrary to section 13 of the Act and that the appellant failed in its duty to make reasonable adjustments both in respect of section 20(3) and (5) and section 21 of the Act. It further held that the respondent’s claims were not time barred, taking the view that the appellant’s actions constituted a single course of conduct.

The respondent conceded that the tribunal had not properly directed itself as to the question of whether a non-disabled comparator would have been similarly treated to him, and that no finding in fact had been made the appellant’s People Advice and Wellbeing Manager, who confirmed that the respondent’s appointment would end on the expiry of the fixed term, acted with a discriminatory motive. On this basis, the appellant submitted that the tribunal had erred in finding that the respondent’s dismissal constituted direct discrimination.

The appellant further argued that the tribunal erred in law in its view that the appellant’s provision, criterion or practice (PCP) of deeming absence for more than seven days as unsatisfactory attendance put the respondent at a substantial disadvantage. In that respect it came to a decision for which there was no relevant evidence or finding in fact and impermissibly shifted the onus to the appellant to present evidence. Their third ground of appeal was that the tribunal erred in viewing the appellant’s actions as a single course of conduct with a complaint presented within the time limit or failed to provide sufficient reasons for exercising its discretion to extend time.

Difficult to see

Delivering the tribunal’s judgment, Lord Colbeck said of the first ground of appeal: “The findings made by the ET are sufficient for a conclusion to be reached on the respondent’s claim for disability discrimination. The ET erred in law in viewing the respondent’s dismissal as direct discrimination in terms of section 13 of the Equality Act 2010. They ought to have dismissed the complaint of discrimination, since applying the relevant comparator it is clear that the appellant would have extended the probation of any non-disabled employee who had performance issue. Moreover, for the reasons we set out below the respondent was not subjected to less favourable treatment because of their disability in relation to the attendance issues.”

On the matter of the attendance policy, he continued: “It is difficult to see what disadvantage the respondent actually suffered. By 1 November 2021 the appellant had agreed not to take any further action in respect of the respondent’s absences and made adjustments in relation to any future absences related to the respondent’s disability. The attendance issue played no part in the November decision to extend the respondent’s probation.”

Turning to the third ground of appeal, Lord Colbeck said: “A failure to make reasonable adjustments in not a continuing act. Absent a decision not to make an adjustment, or an act inconsistent with making an adjustment, the time limit for bringing a reasonable adjustments claim starts to run on the expiry of the period within which the employer might reasonably have been expected to make the adjustments.”

He concluded: “The findings made by the ET in this case demonstrate no decision not to make an adjustment or act inconsistent with making an adjustment. They present as a catalogue of failures by the appellant to make adjustments which had been identified in advance of the respondent commencing employment with them. Whilst no finding was made by the ET within which the employer might have reasonably been expected to make the adjustments, from the facts found it is tolerably clear that they ought to have been made by no later than the end of September 202. It follows that the claims based on a failure to make reasonable adjustments were not brought in time.”

The appeal was therefore allowed on all three grounds, with the matter remitted to the original tribunal for further consideration of whether it should extend time.