In Person For the v T Russell (solicitor) — 2024

The claimant started work for the respondent on 28 November 2022 as an Advisor 1 Technical Support and was dismissed during probation with effect from 20 December 2022 for poor performance after failing two tests requiring a score of 85% or more. He appealed, but the dismissal was upheld. He said he was disabled by anxiety and depression and a learning impairment; the respondent's case was that it did not know, and could not reasonably have been expected to know, of any disability, and that he had done no protected acts.

The tribunal found that the claimant had completed pre-employment forms saying he did not require reasonable adjustments. It did not accept his evidence that he had told Daniel Ritchie about stress and anxiety during training, and it found that the claimant did not clearly say to the respondent that he had a disability during recruitment or employment. The claimant referred during the probation review and appeal to tiredness, being unwell, car problems, having been attacked outside a shop, and being under pressure, but the tribunal found that these matters did not amount to actual or constructive knowledge of disability. It also noted that the respondent had asked adjustment questions on the forms and gave him an opportunity to raise matters on appeal.

On that basis, the tribunal struck out the direct discrimination, failure to make reasonable adjustments, harassment and victimisation claims as having no reasonable prospects of success. It held that the victimisation claim could not succeed because the claimant agreed there had been no protected act. The tribunal applied the Equality Act provisions it identified, including s13, s20, s26 and s27, together with Schedule 8 paragraph 20(1) and Rule 37 of the Employment Tribunals Rules.

The respondent also sought strike out of the indirect discrimination claim. The tribunal rejected that application, holding that s19 Equality Act 2010 does not state or imply that knowledge is relevant. It distinguished the authority relied on by the respondent and referred to Bevan v Bridgend County Borough Council as an example where an indirect discrimination claim succeeded on the same facts as a failed disability arising claim. The indirect discrimination claim was therefore allowed to continue.