The Claimant and his manager worked in sales/marketing. The manager became disabled with cancer. A decision was taken to cease the work done by the manager and the Claimant, resulting in both being dismissed. The Claimant made a claim of direct disability discrimination. The ET determined that the burden of proof had shifted to the Respondent to show that it had not discriminated against the claimant because of his manager’s disability. The ET concluded that the Respondent had discharged the burden of proof to establish that the Claimant was not subject to direct discrimination because of his manager’s disability. The Claimant appealed.

The EAT allowed the appeal. The ET, on its limited analysis, having determined that the burden had shifted, erred in law in holding that the burden had been discharged, particularly in circumstances in which the decision maker was not called to give evidence. The ET further erred in holding that for a disability such as cancer, deemed or actual knowledge of the disability requires that there has been a medical diagnosis.