The claimant mentioned his stammer in his CV when applying for a job. He was rejected without an interview. He did not claim that he had a disability within the Equality Act 2010 (EqA), but claimed that he was rejected because the employer perceived he had a disability. The employment tribunal rejected his claim for direct disability discrimination, because it was for him to show that the employer perceived his stammer to be a disability, and he had not done so. However, he also claimed direct race discrimination, and that claim succeeded. My comment below.
2026, Employment Tribunal. Case No. 6003849/2024. Full decision (gov.uk)
Facts
The claimant had a stammer. He was a British Pakistani. He applied for a job as a Quality Control Manager, sending his CV through an online agency.
The claimant referred to his stammer in his CV, saying: ‘I have a stammer, but I have very good communication skills and have worked effectively at a high level’. (§43)
He was rejected for the job without interview. He claimed direct disability and race discrimination. His disability discrimination claim was on the ground that he was rejected because the employer perceived him to be disabled. He did not argue that his stammer was actually a disability within the EqA.
Held: His disability discrimination claim failed, because he had not shown the employer perceived him to be disabled. However, his race discrimination claim succeeded.
Tribunal decision
Disability discrimination
The tribunal set out the test it should apply:
56. The claimant does not say that he was directly discriminated against because he has a disability, but because the [employer] perceived that he has a disability. The correct test in those circumstances is as approved in Chief Constable of Norfolk v Coffey CA 2019 EWCA Civ 1061. The question is whether the putative discriminator, A, perceives the claimant to be disabled as a matter of law. It will not depend on A’s knowledge of disability law but on whether A perceived the claimant to have an impairment with the features which are set out in the legislation at section 6 and schedule 1 of the Equality Act 2010. It is for the claimant to prove the [employer] had those perceptions.
The tribunal decided that the claimant had not met the initial burden of proof to show that the employer perceived him to be disabled. There was no evidence from which the tribunal could draw any inference that the claimant was perceived as disabled. (§60)
Neither of the employer’s two managers spoke to the claimant at any point. There was nothing in any of the documents which refered to disability, except the reference to a stammer in his CV. The information in the CV did not obviously suggest someone who was disabled. It simply refered to someone with a stammer who was nevertheless able to perform well in a role which involved communication skills. The tribunal had not been pointed to any other evidence which could even suggest a perception of disability. (§60)
The tribunal was played a recording of the claimant speaking to C, a recruitment agent acting for the employer, after the claimant’s CV had been rejected. The tribunal said that in this recording ‘…he stammers on occasion, but in what is a somewhat confrontational conversation, he was still able to forcefully express his dissatisfaction with the situation. His conversation with [C] did not seem to be significantly impaired’. In any event, said the tribunal, the claimant did not speak to either of the two managers involved [one of whom had decided to reject him (§§58-59)]. The only knowledge they would have had about stammer was from the CV, so the tribunal did not find the evidence of the phone call to be relevant to the legal issues. (§43)
Race discrimination
As regards his claim of direct race discrimination, the tribunal accepted that the claimant’s name suggested he did not have a white British racial or ethnic background (§11).
As to whether there had been direct discrimination, the tribunal decided that the burden of proof had shifted to the employer under s.136 EqA, as the claimant shown facts from which it could conclude that the reason for his rejection could be a protected characteristic (§§61-66). Among other things, the claimant’s career experience was more relevant to the role than that of the candidate who was appointed, and he met the employer’s essential role requirements whereas the person appointed did not, or at least not in all respects and not obviously so (§62). Also the employer had given conflicting evidence about the reason for rejection, and whose responsibility that was (§63).
Since the burden of proof had shifted, it was for the employer to prove that it did not directly discriminate against the claimant because of race. The non-discriminatory reasons put forward by the employer were that the claimant’s salary expectations were too high, and that he lived too far away (§67). After assessing the evidence, the tribunal decided that the employer had failed to discharge the burden of proof it faced to show a non-discriminatory reason for the claimant’s rejection (§§68-71).
The race discrimination claim was therefore upheld.
My comment
This was not an appeal decision, so is not a binding precedent.
Direct discrimination and harassment in relation to a ‘perceived’ disability are covered by the EqA: see Perceived disability. A person can claim this even without showing they actually have a disability as defined by the EqA (I discuss this definition in Is the stammer a disability?).
‘Same disadvantage’ indirect discrimination under s.19A EqA can also be claimed by someone who does not have a disability or other protected characteristic. However, that is not based on perceived disability.
This case illustrates a possible disadvantage of basing a claim for direct discrimination on ‘perceived’ disability. The tribunal said it was for the claimant to show that the employer perceived him as disabled. He would need to show this on a balance of probabilities, ie more likely than not. So broadly speaking, the claimant would need to show that more likely than not, he was perceived as having an impairment with a substantial (ie more than minor or trivial) and long-term effect on his ability to carry out normal day-to-day activities. The tribunal decided that the claimant had not shown this.
Had the claimant shown that he actually had a disability within the EqA (this may or may not have been possible), then the tribunal might perhaps have found that the burden of proof shifted to the employer to show it did not discriminate, as the tribunal found for race discrimination. The disability discrimination claim might then have succeeded.
I have raised the question whether it may be possible to argue that the reversal of burden of proof applies also to the issue of whether the employer perceived there to be a disability: Perceived disability>Reversal of burden of proof?
It seems that the perception of disability would need to be by the individual manager who decided not to recruit (Gallop v Newport City Council). So it makes sense that the conversation the claimant had with the recruitment agent was not relevant – unless the agent passed information about the stammer on to the relevant manager.
A claim brought by the same person was decided later the same year, M v Joseph Heler, 2026. Again his disability discrimination claims were based on perceived disability, and again they failed.
Link
- Perceived disability, including particularly
