By Sara Meyer & Hilary Larter
|Published 11 August 2026
In this case, the EAT held that an employment tribunal considering a claim for discrimination arising from disability had erred in focusing on the employer's motivation for instigating disciplinary proceedings against an employee rather than considering whether the employee's disability had a significant influence on their treatment.
Mr Shah was employed by the Home Office as an Executive Officer and was disabled by reason of depression. The Home Office operates a Guaranteed Interview Scheme (GIS) under which disabled applicants who meet the minimum criteria for a role are entitled to a guaranteed interview. In May 2017, Mr Shah applied for an overseas Immigration Liaison Officer post and ticked the box to be considered under the GIS.
Mr Shah's line manager considered that he had falsely claimed disability in order to obtain a guaranteed interview, and that this indicated dishonesty. The Home Office commenced a disciplinary investigation, but ultimately accepted Mr Shah's explanation and took no further action.
An employment tribunal dismissed Mr Shah's claim for discrimination arising from disability. The tribunal found that Mr Shah had ticked the box for the GIS because he was disabled, and that doing so was something arising from his disability. However, it held that the reason for the investigation was the Home Office's genuine but mistaken belief that Mr Shah had been dishonest.
The tribunal also dismissed Mr Shah's victimisation claim, holding that Mr Shah's application under the GIS was merely an attempt to access a more favourable application process, and was not a protected act under the victimisation provisions of the Equality Act 2010.
The EAT upheld Mr Shah's appeal in relation to both claims, and remitted the case to the same tribunal for further consideration.
Discrimination arising from disability occurs where an employer treats a disabled person unfavourably because of something that arises in consequence of their disability. The "something" that causes the unfavourable treatment need not be the main or sole reason but must have at least a significant (or more than trivial) influence on the unfavourable treatment. The tribunal's finding that Mr Shah had ticked the box because he was disabled established an objective causal link between the disability and the relevant "something". The Home Office's genuine but mistaken belief that Mr Shah was being dishonest did not displace that link. The EAT therefore substituted a finding that Mr Shah had been subjected to unfavourable treatment because of something arising from his disability, and remitted to the tribunal the question of whether such treatment was justified as a proportionate means of achieving a legitimate aim.
Victimisation occurs where an employer subjects a person to a detriment because they have done a protected act. The definition of "protected act" is broad, and captures any action taken for the purpose of or in connection with the Equality Act 2010. The EAT held that the tribunal had overlooked the possibility that Mr Shah's application under the GIS was arguably a protected act on the basis that it was done in connection with the Equality Act's provisions on positive action. The EAT therefore remitted the question of whether Mr Shah had done a protected act to the tribunal.
This case serves as a reminder that the fact that an employer's actions were motivated by a genuine belief in an employee's misconduct will not necessarily shield the employer from liability for discrimination arising from disability. Where the conduct being investigated is itself something arising from the employee's disability, the objective causal link is established, and the employer will need to justify any unfavourable treatment as a proportionate means of achieving a legitimate aim.
It also highlights that, depending on the circumstances, an application made under a Guaranteed Interview Scheme or equivalent positive action measure may amount to a protected act. Any action taken based on suspected misuse of the scheme therefore carries a risk of a victimisation claim, and employers should take particular care handling any such investigation.
The case has been remitted to the tribunal and therefore it is possible that the tribunal may consider there was justification for the employer's actions and/or that there was no protected act.
