The claimant had been employed by the respondent's before and been dismissed in 2017 after poor performance in an extended probationary period but was assured he could apply for a role in the future (after a claim was submitted and settled). He reapplied in 2018 and was asked to complete an online form but emailed to say he could not do that for reasons of his disability (dyspraxia) but would be happy to complete the form over the phone. The HR manager had asked the claimant to complete the form and call for the sections where he needed help. This was not resolved but in 2019, the claimant applied for another role with the respondent and was allowed to make an oral application. The ET rejected the respondent's argument that the claimant was not a genuine applicant and went on to find he was at a disadvantage, the respondent had known of the disability and it was 'not reasonable to expect [him] to explain these matters in an email'

The respondent appealed that the Tribunal had erred on four grounds. The EAT dismissed three of those submissions but allowed the appeal on one: the Tribunal's conclusion that the advertised role was in a different team than the one in which the claimant had previously been employed was perverse. As it was not a case where the EAT could substitute its own judgment it was remitted to the same ET for reconsideration of that point, primarily for proportionality reasons.