The appellant worked as a Professor of Engineering at the University of Edinburgh. She was diagnosed with work-related stress and depression and was absent from work. During this period, the appellant wrote to the university’s Principal complaining of being “completely disabled in… employment due to gender discrimination…”

Later, members of the school were instructed not to contact the appellant except through her solicitors, as she was “in dispute with the school”. Attempts were made by the appellant to return to work, but she sought to work outside the School of Engineering due to how she had been treated.

As her work permit was due to expire, options to extend her stay in the UK were explored but it was concluded that none existed and a dismissal letter was authorised. Among other things, it was argued that requiring the appellant to work at the School of Engineering placed her at a substantial disadvantage because of her disability.

The EAT allowed the appeal in relation to the disability related claims, reasonable adjustment claims and the unlawful sex and victimisation claims.

Practical Lessons

The EAT held that it didn’t have to be shown that the Professor suffered a substantial disadvantage because of her anxiety and depression. Rather, a comparison is required to test whether the PCP (provision, criterion or practice) has the effect of disadvantaging the disabled person more than trivially in comparison with non-disabled persons.

Since the Equality Act 2010 does not apply to NI, the law relating to disability discrimination is very different to GB. In NI, the Disability Discrimination Act 1995 requires employers to introduce reasonable adjustments and the case of London Borough of Lewisham v Malcolm still applies. Therefore, if the present case was heard in NI, the appropriate comparator would be a non-disabled colleague in the same or materially similar circumstances who also requested a transfer to a different School.

In GB, however, the appropriate comparator would be a non-disabled colleague who could continue working in the School of Engineering without being liable for dismissal. It is obvious that that the continued application of Malcolm in NI makes it more difficult for a disabled person to prove disability-related discrimination.
https://www.bailii.org/uk/cases/UKEAT/2018/0014_17_0510.html