The Claimant alleged that the Respondent’s withdrawal of his job offer of the position of Trainee Health and Safety Inspector amounted to disability discrimination. The position was offered on 20 December 2018 with a start date of 04 March 2019, but was withdrawn on 28 February 2019. The ET found that the the decision to withdraw the job that had been offered to the Claimant was made on the basis of perceived disability. The Claimant had held the role of Trainee Inspector with the Respondent at an earlier stage. This appointment commenced on 21 April 2008 and he resigned on 17 November 2010 with his employment terminating on 07 January 2011. He did not complete his training. The reasons for his resignation and the relevance of this period of employment to the value of his current claim were very much an issue. The Claimant, in the current case, was claiming substantial compensation for future loss of earnings but objected to the Respondent disclosing documents relating to the Claimant’s previous employment with them. The Respondent submitted that the ET would need to consider the likelihood of the Claimant remaining in the role and for how long and that, in this regard, the events of his previous employment with the Respondent were relevant. The EJ determined that the documents the Respondent wished to rely upon relating to the Claimant’s earlier period of employment with the HSE were inadmissible and should not be referred to in evidence in the proceedings. The Respondent appealed.

The EAT allowed the appeal. The EJ had misdirected herself in failing to appreciate that it was incumbent on the tribunal to assess the chance of the Claimant remaining in the role, even if it could not be shown on a balance of probabilities that his employment would have lasted less than five years. Also, she had failed to take into account that the result of her decision was to deprive the Respondent of the ability to effectively present its case on loss of earnings at the remedy hearing.