By Josh Hornsey, Sara Meyer, and Hilary Larter
|Published 05 November 2026
In this case, the EAT held that an employment tribunal had erred in failing to consider whether an employer acquired knowledge of the claimant’s disabilities during a disciplinary investigation, and whether continuing disciplinary proceedings against him thereafter amounted to discrimination arising from disability.
Section 15 of the Equality Act 2010 provides that a person discriminates against a disabled person if they treat that person unfavourably because of something arising in consequence of the disability. The employer will only be liable if it knew (or ought reasonably to have known) at the time of the treatment that the employee was disabled. It is also a defence to the claim if the treatment was a proportionate means of achieving a legitimate aim.
The claimant ("XYZ"), who is subject to a permanent anonymity order, was employed by Birmingham City Council (the "Council") as an estate caretaker. He was involved in an altercation in November 2021, during which he allegedly shouted and swore at a colleague.
XYZ was subject to a disciplinary investigation for potential gross misconduct, which concluded in April 2022. He was invited to a disciplinary hearing, and on 7 June 2022 he wrote to the Council disclosing that he was “a sufferer of PTSD, anxiety, and mild depressive disorder” and expressing dissatisfaction with the way the Council was conducting the disciplinary process. The Council continued the disciplinary process, and XYZ resigned in response on 16 October 2022.
He brought a number of claims, including discrimination arising from a disability, arguing that his behaviour during the altercation arose from his PTSD. Therefore, by continuing to subject him to disciplinary proceedings, the Council treated him unfavourably because of something arising from a disability.
The ET dismissed the claim, finding that the Council had no knowledge of disability at the relevant time and that the disciplinary process was a proportionate means of achieving a legitimate aim in any event. It found that the Council knew of XYZ's PTSD “by October 2022”, but made no finding on whether knowledge crystallised at any point between June and October 2022. XYZ appealed.
The EAT allowed the appeal. The tribunal had erred in failing to address XYZ's argument that the Council gained knowledge of the PTSD as a disability at some time between June and October 2022. The tribunal should have considered whether a change in the Council’s knowledge of disability following receipt of XYZ's email in June 2022 called for a review of the ongoing disciplinary process.
The EAT also held that, because the issue of knowledge acquired during the disciplinary process had not been considered in full, it was not safe for the tribunal to conclude that the disciplinary process was justified as a proportionate means of achieving a legitimate aim. The EAT therefore remitted the claim to the tribunal.
This case is a reminder that an employer can acquire knowledge of disability during an ongoing disciplinary process. Employers should reasonably investigate a medical condition if an employee discloses it during that process. For an example of a reasonable investigation of disability, see our article on another recent EAT decision here.
To justify disciplinary decisions taken in relation to disabled employees, employers should carefully weigh the potential discriminatory effect of the treatment on the employee against their need to investigate alleged misconduct and impose sanctions where appropriate. Employers should ensure that they consider whether any less discriminatory alternatives would be sufficient to achieve their aims, and should document this analysis. Contemporaneous evidence of this balancing exercise will be important in the event that an employee submits a claim.
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