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Disability Discrimination
Rad Kohanzad represented the Claimant in XYZ v Birmingham City Council [2026] EAT 152, an appeal concerning disability discrimination, constructive discriminatory dismissal and time limits under the Equality Act 2010. The Employment Appeal Tribunal (EAT) allowed four of the seven grounds of appeal. It held that the Employment Tribunal had failed to consider whether the Council acquired relevant knowledge of the Claimant’s PTSD while disciplinary proceedings continued, had not correctly applied the test for constructive discriminatory dismissal, and had overlooked evidence explaining the delay in presenting some discrimination claims. The affected issues were remitted to the same Employment Tribunal for reconsideration.
Background and procedural history
The Claimant worked for Birmingham City Council, initially as a trainee estate caretaker and later in a supervisory role. He experienced conflict with an older colleague, culminating in an incident in November 2021 in which the colleague threatened him with a chair. The Claimant also shouted and swore during the exchange. Both employees faced disciplinary proceedings.
The investigation into the Claimant continued into 2022. In June, he informed the Council that he had PTSD, anxiety and depressive disorder. He later raised a grievance, which the Council directed him to use as mitigation in the disciplinary process. He resigned in October 2022, treating himself as constructively dismissed.
The Council admitted liability for unfair dismissal and unpaid wages or annual leave. The Employment Tribunal dismissed the remaining discrimination claims. It rejected the disability-related harassment claim, found that the Council lacked relevant knowledge of disability at the material times for the section 15 claim, and held that the disciplinary process was justified. It also rejected the disability and age discrimination claims concerning constructive dismissal, and refused to extend time for a number of age discrimination complaints despite finding that several underlying allegations were made out.
The Claimant appealed on seven grounds. The EAT dismissed Grounds One, Five and Six, but allowed Grounds Two, Three, Four and Seven.
Disability discrimination: knowledge and continuing disciplinary proceedings
Section 15 of the Equality Act 2010 prohibits unfavourable treatment because of something arising in consequence of a person’s disability, unless the treatment can be objectively justified. Under section 15(2), the employer must also know, or reasonably be expected to know, that the employee is disabled.
The EAT distinguished between knowledge of the facts constituting a disability and knowledge of the legal test for disability. It also rejected the argument that general knowledge of mental health difficulties necessarily established knowledge of the particular disability relied on. On the facts, the relevant disability for the disciplinary complaints was PTSD, which the Claimant himself did not know he had until March 2022. The Council’s knowledge of other mental health conditions did not automatically establish knowledge of PTSD.
However, the Claimant had expressly disclosed his PTSD in an email in June 2022. The Employment Tribunal had not considered whether the Council acquired the necessary knowledge at some point between that disclosure and his resignation in October. Nor had it properly considered his case that continuing the disciplinary process during that period was itself unfavourable treatment.
The EAT held that these were material omissions. The question was not limited to whether the Council had knowledge when the disciplinary process began. The Tribunal needed to consider whether knowledge changed during the process and whether continuing it after the June disclosure amounted to unlawful discrimination arising from disability.
Justification must be assessed properly
The Council argued that the disciplinary proceedings were justified because of the seriousness of the Claimant’s admitted conduct. The EAT was not satisfied that the Employment Tribunal had properly balanced the discriminatory effect on the Claimant against the Council’s legitimate needs. In particular, the Tribunal had not adequately analysed less discriminatory alternatives, such as obtaining occupational health advice or reconsidering whether the process should continue after the PTSD disclosure.
The EAT therefore allowed the relevant grounds of appeal. It did not decide that the Council had unlawfully discriminated; it held that the existing reasoning could not safely determine the issue, particularly in relation to the period after June 2022.
Constructive dismissal and discrimination arising from disability
A constructive dismissal can amount to discriminatory dismissal under section 39(7) of the Equality Act 2010. The legal question in a section 15 case is not simply whether the employee resigned in response to “something arising” from disability. The Tribunal must examine whether the employee resigned in response to the unfavourable treatment that was because of something arising in consequence of disability, and whether that treatment was justified.
The EAT accepted Rad’s submissions that the Employment Tribunal had framed the question incorrectly. Because the Tribunal also needed to reconsider whether continuing the disciplinary proceedings after June 2022 was discriminatory, it had to reconsider the related claim that the constructive dismissal was disability discrimination.
Time limits for discrimination claims
Equality Act claims normally have a three-month time limit, subject to the applicable rules on early conciliation. A Tribunal may extend time where it considers it just and equitable to do so. The decision is discretionary, and an appeal will not succeed merely because another decision-maker might have reached a different conclusion.
Here, the Employment Tribunal had stated that the Claimant had provided no evidence explaining why his age discrimination claims were late. The EAT found that this was wrong: his witness statement contained an explanation that bringing a claim would be “triggering”, and his closing submissions also gave reasons for the delay. The Tribunal had also wrongly treated those submissions as incapable of constituting evidence for this purpose.
The EAT held that the Tribunal needed to reconsider the time-limit issue with that evidence in view. It did not decide that an extension must be granted; it remitted the question for a proper assessment.
What the EAT decided
The judgment illustrates four important points:
Knowledge of disability must be assessed in context. An employer’s knowledge of one health condition does not automatically establish knowledge of a different disability relied on for a particular discrimination complaint.
A continuing process can require fresh consideration. Where an employer learns relevant information about an employee’s disability during disciplinary proceedings, a Tribunal may need to consider whether continuing the process constitutes further unfavourable treatment.
The justification defence requires a proper proportionality assessment. The Tribunal must evaluate the discriminatory impact and the employer’s legitimate aims, including whether less discriminatory alternatives were available.
A time-limit decision must take account of the evidence actually given. A Tribunal cannot properly conclude that there is no explanation for delay without considering relevant evidence in the witness statement and submissions.
The EAT dismissed the grounds challenging the disability-related harassment finding and the Employment Tribunal’s conclusions on two aspects of age discrimination. It did not substitute findings of discrimination on the grounds that succeeded. Instead, it remitted the relevant issues to the same Tribunal, which must reconsider them in light of the EAT’s reasoning.
Could an Employment Tribunal have made an error of law in your case?
This judgment may be relevant where an Employment Tribunal has failed to consider the effect of new information about a disability, applied the wrong test to a discrimination claim, or overlooked evidence explaining why a claim was presented late.
An appeal is not a rehearing of the original dispute. The question is whether the Tribunal made an error of law, such as applying the wrong legal test or failing to address a material issue. Whether that threshold is met depends on the judgment, the evidence and the precise grounds available.
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Case details
Case: XYZ v Birmingham City Council
Neutral citation: [2026] EAT 152
Judgment date: 5 October 2026
Judge: His Honour Judge Feeny
Case number: EA-2024-001184-DXA
Counsel for the Claimant: Rad Kohanzad
Counsel for the Respondent: Paul Wilson, instructed by Birmingham City Council’s Legal and Governance Department
Outcome: Appeal allowed on Grounds Two, Three, Four and Seven; dismissed on Grounds One, Five and Six. The specified issues were remitted to the same Employment Tribunal.
Official judgment: Read the full EAT judgment (PDF)
