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Assertion of Disability is Not By Itself Enough to Claim Harassment Under the Equality Act

09 March 2017 #Employment

In Peninsula Business Services Limited v Baker, the Claimant worked as a legal advisor. The Claimant told his manager that he thought he may have dyslexia. Occupational Health recommended that reasonable adjustments be put in place as he was likely disabled for the purposes of the Equality Act 2010. Following this, Peninsula began covert surveillance as they suspected the Claimant was not devoting all his time and attention to his work.

The Employment Appeal Tribunal, overturning the original decision by the ET, held that for a claim of harassment under the Equality Act, it was not enough for Mr Baker to have merely asserted that he had a disability: he needed to prove to the Tribunal that he was either disabled, associated with a disabled person or wrongly perceived to be disabled. In addition, the disclosure of the surveillance during a disciplinary hearing (which the ET had held to be harassment) was reasonable and in accordance with the ACAS Code. As such, the disclosure could not be considered harassment and the ET was overturned on this finding.

While this case may be useful for employers, it does not alleviate the need in most cases to obtain an opinion from a medical professional (such as occupational health) on an employee’s condition. Taking such steps will show that the employer has taken an employee’s conditions into consideration and considered what steps may need to be taken in light of such guidance.

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
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