The claimant was given notice in August 2016 of his dismissal due to poor performance.  He subsequently brought a claim outlining direct discrimination and harassment on the basis of disability - in relation to the claimant’s diagnosis of type 1 diabetes.  The company refuted the claim citing that it had no knowledge that the claimant was in fact, disabled.   Instead, they disclosed an email from a client which had outlined an error from the claimant resulting in an overcharge. The claimant’s name was expressly mentioned in the email, but it was later discovered at the Tribunal that the respondent’s director had added this in rather than the client stating this.

In June 2016 the claimant was given a written warning for unsatisfactory performance.  It was in July 2016 that the claimant was diagnosed with having Type 1 diabetes and this was made known to the respondent a few days later.   It was found by the Tribunal that the respondent was made aware of the diagnosis before the board meeting on 4th August 2016 which convened to dismiss the claimant.   The Tribunal upheld the employee’s claim on the basis of the refusal of the directors of the respondent to acknowledge the ill-health in their decision to dismiss.

The respondent appealed this decision.  The issues of performance were legitimate, but the issues were embellished as evidenced through the doctored email.  When it came to the burden of proof, it was found that the respondent had failed to prove that the dismissal had no link to the claimant’s disability. The decision could be regarded as being ‘materially tainted’ by disability discrimination.  The fact that the email had been altered was seen as the respondent seeking to strengthen its case against the claimant on the basis that there was the issue of disability which it sought to circumvent.

On the knowledge of the disability, it was regarded as being ‘inconceivable’ that the respondent was unaware of the diagnosis prior to the August meeting and the Directors continual refusal to acknowledge that the claimant was suffering from ill health could be an act of disability discrimination.  A further point was that the Tribunal and EAT were aware of the real possibility of collusion between the respondent’s witnesses.  An inference could be made to the effect that the respondent sought to disguise the influence of the diagnosis on the dismissal decision.  Accordingly, the respondent’s appeal was dismissed.

Practical Lessons

The main learning point that can be taken from this case is the issue with the burden of proof.  It was found that there had been no misapplication of the burden of proof when it came to considering the respondent’s reason for the dismissal alongside the claimant’s argument.  The fact that the burden may not be discharged by the respondent when the decision is ‘materially tainted’ means that it does not have to be shown that the discriminatory reason was the sole or principal reason for the action that was taken.  The fact that the respondent’s witness had doctored some of the evidence (i.e. the email to ground the decision to dismiss) did not create a good picture for the Tribunal.
https://www.gov.uk/employment-appeal-tribunal-decisions/p2cg-ltd-v-mr-m-davis-ea-2019-000762-at-previously-ukeat-slash-0188-slash-20-slash-at