No Discrimination Where Disability is Only Perceived

In the case of London Borough of Redbridge v Baynes, the Employment Appeal Tribunal (EAT) decided that there can be no discrimination for the purposes of the Disability Discrimination Act (DDA) where an employee is perceived as disabled but is, in fact, not.

• The employee in this case lost her sight in one eye.
• Her line manager then changed her duties, as he considered she was disabled.
• The employee resigned and claimed constructive unfair dismissal and disability discrimination on the basis of the perceived disability.
• The employee stated on her claim form that she was not disabled and that the loss of sight in one eye did not affect her day to day activities.

At a Pre-Hearing Review, the Judge at first instance concluded that the employee was disabled, despite not having heard any medical evidence to support this contention.

The EAT considered that the Judge's position was perverse and reversed that decision.

The EAT went on to conclude that as there was no disability in this case and the employee had accepted that she was not disabled, there could be no discrimination within the definition of the DDA.

Whilst this decision gives employers a welcome respite, it should be noted that discrimination due to a perceived, rather than an actual, characteristic will be protected under the Equality Act 2010.

This case also serves as a reminder to employers to discuss any proposed changes with employees, rather than just unilaterally changing conditions and presuming that employees will appreciate these changes.