The Claimant was disabled and by December had already had 22 days absent in the last 12 months. This absence rate would ordinarily have triggered the Respondent's absence policy (where an 8 days absence in a rolling 12 months was a trigger point for consideration of action) but the Respondent wrote to the Claimant increasing the trigger point to 11 days. It wasn't clear in the letter whether the previous 22 days absence would be written off but according to the Claimant, unless it was written off, he was at a disadvantage because the new 11 day absence trigger point had already been exceeded. There were also issues regarding flexible breaks and blocking off time in his diary. The ET dismissed his claims that the Respondent had not made reasonable adjustments and the Claimant appealed.

The EAT allowed the appeal on one ground. The ET fell into the error described in Risby v London Borough of Waltham Forest UKEAT/0318/15/DM. It did not consider whether the Claimant’s conduct was a consequence of his disability in the broadest sense. The ET also misidentified the consequence of disability; the unfavourable treatment could not also be a consequence of the disability.