Can a Claimant successfully claim harassment by simply asserting s/he has a disability without establishing s/he is disabled under the Equality Act 2010?

No, held the EAT in Peninsula Business Services v Baker.

The Claimant was employed as a tribunal representative by Peninsula. In January 2014, he told his advocacy manager he had dyslexia. A psychologist’s report confirmed this and an occupational health report in August 2014 suggested he may be disabled.

Peninsula’s director of legal services grew concerned the Claimant was not devoting his time to his work and instructed external consultants to conduct covert surveillance.

The Claimant complained that being subjected surveillance constituted harassment on grounds of disability. The employment tribunal found for the Claimant but, acknowledging it was not asked to determine disability, found “on the basis that the Claimant may well have been disabled” that the trigger for the decision to engage in surveillance was an assertion of disability.

Overturning the decision, the EAT held that discrimination protection is not available to those who merely assert a disability. The protection applies only to those who have a disability, to those associated with a disabled person, or to those who are wrongly perceived to be disabled.