Claimant was not discriminated on the basis of her disability as the respondent had no knowledge that she had a disability within the meaning set out in the Disability Discrimination Act 1995.

The claimant was employed by the respondent as a Retail/Stores Tutor Assessor.  She initially applied and was unsuccessful but her details were retained.  Another role came up and the claimant indicated a willingness to be considered but stated she could only work 28-30 hours per week.  No reason was given for that request.  The claimant was successful and offered the role in March 2022.   As part of the induction documents the claimant was asked to provide any details of medical conditions or disabilities.  For that aspect the claimant stated that she played sport a number of years ago and it led to an incident with her neck (affecting right arm and two feet) but it was not visible and did not affect work.  It would only affect throwing movement with the arm. There was disagreement between the claimant and respondent in relation to what medical information was disclosed at the beginning of employment, if any.    The difficulty with throwing as disclosed was not regarded by the Tribunal as meeting the definition of a disability namely ‘a physical or mental impairment which has a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities’.

Four months into the employment the claimant alluded to having a higher workload which was disproportionate to the number of days worked.  She claimed this was discrimination based upon her disability as she was working 4 days per week due to her disability.

In December 2022, the claimant was diagnosed with osteoarthritis but at no stage did she bring that to the attention of the respondent.   The claimant continued to state that she had an excessive workload up until her resignation in July 2023.

The Tribunal found that there was a pattern of inconsistencies in the claimant’s assertions to the respondent relating to physical difficulties she may have. This also involved omitting key information which she later sought to rely upon at the Tribunal.   The claimant was unable to provide an explanation as to what basis the Tribunal might conclude that the respondent should not have taken at face value what the claimant had said.  Taking into account the definition of a disability within the Disability Discrimination Act it must concern the ability to carry out normal day-to-day activities.  The claimant argued that the physical difficulties affected her ability to cope with the workload such as having to bend over a laptop and the stress in trying to unsuccessfully deal with the physical discomfort.  Bearing in mind the information given to the respondent by the claimant it was held that the claimant was not disabled within the definition of the Disability Discrimination Act 1995.

The claimant also brought a constructive dismissal claim citing that the last straw came when the respondent suggested cutting her hours.  The claimant stated this was a unilateral decision by the respondent but the evidence demonstrated there was a discussion and it was ultimately the claimant’s choice.  As a result, the Tribunal held that that assertion could not be relied upon as a genuine catalyst for her resignation.  As a result, the claims were dismissed. 

In terms of determining whether the claimant had a disability it must be remember that it is for the claimant to prove that the definition has been met but also that the respondent had knowledge of the disability.  In this case, the information given to the employer was quite brief on the physical impairments and the claimant presented a more significant picture at the Tribunal.  However, it can only be what the respondent was aware of that can be taken into account.  This demonstrates the importance, as the respondent did here, of giving an opportunity for employees to disclose their disabilities/impairments when they commence their employment and also throughout their employment so that reasonable adjustments and other steps can be put in place as necessary.

NI Tribunal decisions are available on the OITFET website.