EMPLOYMENT TRIBUNALS (SCOTLAND)5 Case No: 4110245/2021 (V) Held remotely by means of the Cloud Video Platform on 15, and December 202110 Employment Judge W A Meiklejohn Tribunal Member Ms N Elliot Tribunal Member Mr A Ward Mr S McCready v Manchester Metropolitan University and 1 other — 2022

The case concerned direct disability discrimination in relation to a KTP Associate role. The claimant had multiple sclerosis, which the respondents ultimately accepted was a deemed disability. The tribunal found that he applied for the role, was shortlisted and interviewed twice, and was initially the preferred candidate, but the panel had a concern about whether he could commit to an early start date because he was then on a Siemens fixed-term contract that might be extended. After a further round of recruitment, the role was offered to another candidate.

On the allegation that the claimant was not offered the job because of disability, the tribunal held that there was rejection within the meaning of section 39 EqA, but not less favourable treatment because of disability. It found that the named comparators were not materially similar, because their second interviews were for final selection and the panel did not have the same concern about start-date commitment. The tribunal accepted a hypothetical comparator with the claimant’s abilities but without MS and similarly unable to commit to a suitable start date would also not have been offered the role. The reason for the re-advertisement and non-offer was the claimant’s unwillingness to commit to a suitable start date, not his multiple sclerosis.

On the allegation about failure to engage with communications and confirm the outcome, the tribunal accepted that there had been a delay and internal communication failure. It found that MMU believed feedback was being handled by Mr Perrott, that Mr Perrott’s omission to tell the claimant the outcome was an oversight, and that the delay was discourteous but not discriminatory. The tribunal also found no basis for personal liability against Dr Erfani, Prof Qian, Mr Perrott or Mr Heatherington because they were acting in their capacities as employees. Applying the section 136 EqA burden of proof approach, and referring to Madarassy, Igen and Bullale, the tribunal concluded that the claim failed in full.