This EAT case was an appeal by the respondent against an Employment Tribunal finding that it had been guilty of disability discrimination against the applicant in three respects: in failing to allocate her a parking space in the car park at her place of work, in harassing the employee by e-mail during its capability process and by dismissing her ostensibly for capability reasons.

The claimant had worked for the respondent for a considerable period. She had been, from 1992 until 2007, a Regulatory Support Officer dealing with the regulation of hazardous waste and cross-border waste shipment. In 2007, she became an Environment Officer. She had osteoarthritis of the knees and spondylitis, which affected her back and her hip. As a consequence of her condition, the claimant was disabled within the meaning of the DDA, which was at that time in force. The claimant had been in her role as an Environment Officer for a short time when her disability interfered with her ability to work, resulting in a number of absences. During this period, the respondent initiated and pursued its capability procedure. Consequently, the claimant was also absent during this period due to stress over the uncertainty of her employment, and the search for work that the she could carry out. She was ultimately dismissed on capability grounds 16 months after her first absence.

The EAT upheld the Tribunal’s finding concerning the respondent employer’s failure to provide car parking space. The employer had argued that it was the claimant's choice, as a flexitime worker, to arrive at work at 9.30am, when the car park was full, as opposed to 9.00am, when more parking was available.

The EAT held that, "[t]he Claimant had the right to come into work at any time within the flexitime arrangements. It was not for her but for the Respondents to make reasonable adjustments; the Tribunal had considered the relevant factors and had made a decision which was open to them."

The EAT overturned the Tribunal's finding that the employer’s email to the claimant during the capability procedure had been harassment. The EAT held that it was perverse to suggest the email content could reasonably be seen as falling within the definition of harassment found in section 3B of the Equality Act 2010. The claim regarding dismissal was remitted.

The EAT held that perversity was not overwhelmingly demonstrated, but it voiced concern that the Tribunal had not directed themselves to the range of reasonable responses test and appeared instead to have substituted their own view. http://bit.ly/1b9K97V