The claimant applied for two jobs with the employer, saying in his CV that he had ‘excellent communication skills despite having a stammer’. He was not appointed. He claimed this was because the employer perceived him to have a disability within the Equality Act 2010 (EqA). The employment tribunal rejected his claims. He had not shown that the employer perceived his stammer to have a substantial effect on normal day-to-day activities. In any event, the employer had presented cogent evidence that the reason he was not appointed had nothing to do with his stammer. His claims for race discrimination and victimisation also failed.
2026, Employment Tribunal. Case No. 1307046/2024. Full decision (gov.uk)
Summary and comment
Normally a person claiming under the EqA will argue that their stammer etc is a ‘disability’ within the EqA definition (Is the stammer a disability?). They may sometimes use ‘perceived disability’ as a secondary argument (Perceived disability).
This case is unusual in that, like in M v Jacksons Dairy (2026) brought by the same claimant, he did not argue that his stammer was a disability, but only that the employer perceived his stammer to be a disability.
In this as in the previous case, the employment tribunal (ET) rejected his disability discrimination claims. He had not shown that the employer perceived his stammer to be (broadly, as set out in the EqA definition) an impairment with a substantial and long-term adverse effect on ability to carry out normal day-to-day activities. (Perceived disability>What perception of disability is required?)
His CV stated that he had ‘excellent communication skills despite having a stammer’. A person reading this could not know if the stammer had any adverse effect on his ability to carry out normal day-to-day activities, said the ET.
In any event, the ET was satisfied that he was not turned down for the jobs because of his stammer (or his race).
On his victimisation claim (below) under s.27 EqA, the ET decision is somewhat interesting in taking account of the surrounding context to hold that an email sent by the claimant was an allegation of breach of the EqA, and thus a ‘protected act’ within s.27. However, the victimisation claim failed as the employer had not subjected him to a detriment because of this email.
Some adjustments (below) were made in the ET hearing (cf Appearing in court with a stammer). However it is not clear whether any of these were for the stammer.
ET decisions like this are not binding as precedents.
Facts
The employer was a dairy company which made cheese and butter products. The main facts narrated by the ET happened over a period of 12 months, during which there were two job applications by the claimant, and various other correspondence with him. At one point the claimant was going to be interviewed, but this didn’t happen. To simplify, his discrimination claims largely related to his being rejected for three posts:
- ‘Technical Manager’, a post advertised by the employer, but to which no one was appointed
- ‘interim Technical Manager’, not advertised, to which a person was appointed who previously worked with the employer’s owners
- ‘Technical Manager (Senior)’, a post advertised by the employer, but to which no one was appointed.
A person who previously provided interim technical support was later appointed ‘Head of Technical’ at a much higher salary.
The claimant was unable to confirm which version of his CV he used to apply for the two advertised jobs. The ET found that he used the same CV for both. This referred to him having a ‘passion for food, rooted in my Pakistani heritage’. It also referred to him having ‘excellent communication skills despite having a stammer’ (§18). The ET said a person reading the CV would not take from it that he had a disability within the EqA:
18 … Whilst anyone reading the CV would have known the claimant had a stammer, they would have understood that it didn’t affect his communication skills to more than a minor or trivial degree. If the claimant’s stammer had any adverse impact on his ability to carry out normal day-to-day activities, a person reading his CV would not have known that, because the CV did not give any further detail.
Held: His claims for race and disability discrimination were rejected, as was his victimisation claim.
Employment tribunal (ET) decision
No perceived disability
Firstly, did the employer’s decision-makers perceive the claimant to have a disability on the date at which they made the relevant decisions?
The ET said It was common ground between the parties in Chief Constable of Norfolk v Coffey, and the Court of Appeal agreed, that in a claim of perceived disability discrimination, the putative discriminator must believe that all the elements in the statutory definition of disability are present (but need not attach the label ‘disability’ to them): see Perceived disability>What perception of disability is required? (§121)
(Broadly speaking, the EqA defines a disability as a physical or mental impairment which has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities.)
The EAT said it had no evidence to show that any of the decision-makers knew any more about the claimant’s stammer than the information he included in his CV. Anyone reading the CV would have known he had a stammer, but could not have known if it had any adverse effect on his ability to carry out normal day-to-day activities, because the CV did not give any further detail. (§135)
The ET concluded that none of the decision-makers perceived the claimant’s stammer to have a long-term adverse effect on his ability to carry out normal day-to-day activities. It followed, applying Coffey, that none of them perceived him to be disabled. (§135)
Some month’s after the claimant’s first job application, the People Director received some further information about the claimant’s stammer, when the claimant said that in interview he wanted to ensure his stammer was not mistaken for uncertainty or lack of experience. However, this email still did not make explicit any alleged effect of the stammer on normal day-to-day activities. In any event, the ET found that the People Director did not pass on this email to any of the decision-makers.
No discrimination because of perceived disability
As regards his various claims for direct discrimination because of (perceived) disability, the ET held that at the relevant time, the employer did not perceive the claimant as a disabled person. The claimant had not proved facts from which the ET could infer under s.136 EqA that not appointing him etc was because of a perceived disability (Perceived discrimination>M v Jacksons Dairies). (§§144, 154, 179)
Even if the burden of proof had shifted under s.136, the ET was also satisfied that the employer had presented sufficiently cogent evidence to persuade it that the reason why the claimant was not appointed etc had nothing to do with his stammer. (§§145, 155, 180)
The ET similarly rejected a claim for direct discrimination because of perceived disability in relation to the role of Technical Manager being changed to that of Technical Manager (Senior). (§§167-168)
The ET accepted that the claimant had a genuine interest in the roles he applied for (cf Garcia v The Leadership Factor>Not genuinely interested in job) (§§97-99.5). Even so, his claims failed for the reasons above.
No race discrimination
The ET also rejected his claims of direct race discrimination. The burden of proof had not shifted to the employer under s.136 EqA to show a non-discriminatory reason for its actions. But even if the burden of proof had shifted, the employer had presented sufficiently cogent evidence that the reason for the claimant not being appointed etc was in no sense whatsoever because of race. (§§141-143, 147-153, 157-166, 170-178)
No victimisation
The claimant argued that he had been victimised under s.27 EqA (Victimisation), in that he had been subjected to a detriment because of an email he sent to the People Director in June 2024. The email asked whether the role of Technical Manager was still available. It said that he had already ‘expressed concerns about potential discrimination in the way my application was handled and the lack of progression. Thus far, Heler’s conduct and lack of transparency have only emphasised my concerns.’ (§53)
The ET found that this was a reference back to the fact that in April 2024, the claimant had notified ACAS for the purposes of early conciliation in respect of not being selected for the ‘Technical Manager’ post, and that at or around that time, he had alleged to the employer that his application for the role of Technical Manager was rejected because he had a stammer. (§§53, 39)
The email was a protected act…
The claimant argued that this June 2024 email was a protected act within s.27(2)(d), as something making an allegation that the employer had contravened the EqA.
The employer disagreed, saying the wording of the email was akin to Chalmers v Airpoint, where the claimant had used the words ‘may amount to discrimination’ and this was held not to be a protected act (Victimisation>Deciding whether there is an allegation of breach of the EqA, s.27(1)(d)). Also, said the employer, there was no express reference to the claimant’s race or stammer in the email, and what he said was false and in bad faith. (§182)
The ET stated that case law made clear that the ET was required to take account of all the factors that were provided in the information given by the employee to the employer, and to consider the information on the basis of how it would be understood by the employer in context. This included the general facts known about the claimant. Given the April 2024 history (starting ACAS early conciliation, and his allegation that he was rejected because of his stammer), of which the People Director was aware, the ET concluded that the claimant’s June email could be read as making an implied allegation that he was being discriminated against because of the employer’s perceptions about his stammer. Further, the ET found as a fact that the claimant’s suggestion in his June email was not made in bad faith.
The ET therefore concluded that his email was a protected act within s.27 EqA.
… but the claimant was not subjected to a detriment because of the email
The ET however rejected his claim for victimisation under s.27 EqA, on the basis that the claimant had not been subjected to a detriment because of the email.
The claimant argued that two detriments were because of the email, including not being appointed to the role of Technical Manager (Senior). The ET held that the burden of proof had not shifted to the employer under s.136 EqA to show a non-discriminatory reason for these detriments. But even if the burden of proof had shifted, the employer had presented sufficiently cogent evidence that the reason for the claimant not being appointed etc was in no sense whatsoever because he had done a protected act, ie because of this email. (§§185-193)
Reasonable adjustments in tribunal hearing
The ET agreed to allow short breaks in the tribunal proceedings, but only partially accepted a requested adjustment that the claimant would not be interrupted. The ET said:
5. On the first day of the hearing, we also discussed and agreed that we would take a break of around 5 minutes after every 1.5 hours of hearing time. The claimant agreed to let us know if he needed further time to gather his thoughts. The claimant used an unmarked copy of his witness statement printed on pastel paper. The claimant had also requested an adjustment of not being interrupted. The Employment Judge explained to the claimant that whilst the Tribunal would try to avoid interrupting, it may sometimes be necessary for her to interject. She gave examples of situations in which this might be necessary, and ways in which the need for her to interject might be reduced.
[Comment: It is not clear how far, if at all, these adjustments were in respect of his stammer. Pastel paper could be for dyslexia or visual stress. On adjustments in court, see Appearing in court with a stammer.]
