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T v Office for National Statistics

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Last updated 10th November 2005.

The applicant was black and had a stammer. As with all new recruits at the employer, he entered a probationary period. He was dismissed on the basis that he had not met the standards expected of him during his probationary service.

Employment Appeal Tribunal, 2004. Full decision: bailii.org.

His complaints included disability discrimination, a failure to make reasonable adjustments for disability, and race discrimination. The employer resisted all the complaints.

At a preliminary hearing it was determined that, because of his stammer, the applicant was at all material times a person with a disability for the purposes of the Disability Discrimination Act 1995 (DDA). However the Employment Tribunal subsequently dismissed all the discrimination complaints. The EAT upheld this decision.

The EAT decision itself is of limited interest. However, it emerges that the Employment Tribunal clearly found, as a fact, that the applicant was not dismissed for a reason related to his disability. What principally lay behind this, as found by the Employment Tribunal, was a sharp and sudden decline in his attitude and behaviour. The letter of dismissal indicated two areas where he had failed to meet the employer’s required standards as set out in the applicant’s terms and conditions of employment, namely attendance and conduct.

The applicant’s representative made no attempt to suggest that his unacceptable conduct was in any way linked to his disability, bearing in mind that that conduct was the major factor troubling the employer. The applicant’s representative argued that the Employment Tribunal had failed to examine whether the more minor factor, i.e. attendance, was related to his disability. However, the EAT said it was apparent that the Employment Tribunal could not, as a fact, relate any part of the applicant’s failure to meet acceptable standards to his disability.

The applicant had complained of being bullied by his employers, and that it was their attitude to him which resulted in stress, to which he alleged he was more susceptible than others because of his stammer. He submitted before the EAT that his stress was a manifestation of his stammer (see Murray -v- Newham CAB Ltd [2003] IRLR 340). The EAT said that if there is a recognised manifestation of a disability, dismissal could be related to the disability through the recognised manifestation. However, it was satisfied that the Employment Tribunal was in no way persuaded that that was the situation with the applicant, and that any suggested link of that nature was far too tenuous.

The final ground of appeal turned on the Employment Tribunal’s statement that “the applicant gave no evidence that the appearance of the applicant’s stammer or any consequential gestures appeared intimidating or gave the appearance that he was harassing any member of staff.” The EAT said this emerged as taking a sentence in isolation. The Employment Tribunal was there referring to evidence of specific incidents, and the EAT was satisfied that the Employment Tribunal did not overlook that during meetings preceding his dismissal the applicant was making the point that other staff might wrongly interpret an effect of a stammer as being aggressive behaviour. The Employment Tribunal could not however determine there being any failure to make adjustments consequent upon those matters.

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