Boesi v Asda Stores Limited [2023] EAT 49

Appeal against the dismissal of the Claimant's claims of unfair dismissal, race discrimination, disability discrimination, disability discrimination by reason of a failure to make reasonable adjustments and victimisation. Appeal dismissed.

The claimant, who worked as a warehouse operative for the Respondent, was disabled for the purposes of the EqA, by reason of a degenerative disc disease in her lower back. The Respondent also conceded that it had known of the Claimant's disability at all material times. The Claimant went off sick and was eventually dismissed by reason of incapability, the Respondent unable to find or offer her an alternative role which involved lighter duties. The Claimant initially pursued an appeal against her dismissal but discontinued this, instead taking her claim to the ET. The ET accepted that the Claimant had not been offered the lighter duties of other roles. It asked itself whether the hypothetical comparator would have been treated more favourably, considering whether there are any facts from which it could conclude that the reason for the Claimant's treatment was her disability. The advice from the physiotherapist was simply that the Claimant was not fit to return to work. Even if there was a vacancy for a role with lighter duties, she would not have been able to undertake it. The hypothetical comparator in the same circumstances as the Claimant but not meeting the definition of a disabled person would have been treated in exactly the same way. There was therefore no less favourable treatment. The Claimant appealed.

The EAT dismissed the appeal. The ET had not erred in its task under section 13 Equality Act 2010. This was a case where the ET had to determine the reasons for the Respondent’s decisions in order to establish the relevant circumstances of any comparison. So doing, it did not err in finding that the relevant circumstances included the Claimant’s long-term absence from work and inability to return to work or to undertake alternative tasks.

Published: 07/06/2023 10:04

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