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Kenworthy's Chambers

Bruce Henry Successful in Disability Discrimination Case at Employment Appeal Tribunal

by Kenworthy's Chambers 23/07/2019

Bruce Henry, instructed by Thompsons Solicitors, on behalf of UNISON had succeeded in a claim for disability discrimination pursuant to s.15 of the Equality Act 2010 in Manchester Employment Tribunal when a prospective employer withdrew a job offer to a disabled applicant as a consequence of her disability. The Employment Tribunal had decided that withdrawing the offer was not a proportionate means to comply with their duty under the Children's Homes (England) Regulations 2015.

The employer appealed the decision on proportionality, in particular contending that the ET failed to ask itself whether the lesser steps which it had identified would be likely to have resulted in a different response from the employer's decision maker.

Mr Justice Soole in the EAT accepted Mr Henry's submissions and dismissed the appeal, particular holding that, in considering the issue of proportionality, the ET did not have to be satisfied that the identified and proportionate lesser measures would or might have been acceptable to the decision maker or otherwise caused them to take a different course. To do so would be at odds with the objective question which it had to determine; and would give primacy to the evidence and position of the decision maker. The full judgement of the EAT can be found here.