Disability discrimination: why employers with good intentions are still losing at tribunal 

By Jess Kelleher, Head of Litigation, Halborns (part of Empowering People Group) 

Endometriosis is a condition that may not cross many managers’ minds as potentially protected under the Equality Act. Yet there it was. When Sanju Pal won her Employment Tribunal claim following surgery for endometriosis, it raised a question that more employers should be sitting with: what exactly amounts to a disability, and are we really prepared? 

Indeed, these cases are on the rise. Disability discrimination issues were raised in 16% of ACAS claims in 2024/25, up from 13% just two years earlier. The scope of what qualifies as a disability is broadening, and how employers respond to it is more under the microscope than ever before. 

Quite often, managers assume that because no formal diagnosis had been disclosed, disability simply wasn’t in play. Those assumptions are proving expensive. Compensation for disability discrimination is uncapped, and the reputational consequences of a tribunal finding tend to follow organisations long after the case is closed. 

The three cases below show vital, and perhaps hidden, issues employers need to be aware of. 

Informal disclosures carry real legal weight 

Kaler v Insights ESC (2024), decided by the Employment Appeal Tribunal (EAT), addressed what employers are expected to do when a health disclosure is partial or informal. In this case, the claimant had referred to herself as an “aspie” and mentioned having Autism Spectrum Disorder. The EAT ultimately upheld the finding that conduct leading to dismissal was not caused by her disability, but the case is a significant reminder about constructive knowledge. 

Tribunals will rarely accept an argument that no formal diagnosis was provided if there were sufficient indicators that should have prompted further enquiry. Importantly, a manager who is aware of facts suggesting a health condition is expected to explore them rather than wait for a clinical letter to arrive. Where employers fail to document what was disclosed, what was discussed and what was considered as a result, they leave themselves with very little defence in the case of a claim. 

Process alone is not protection 

Clifford v British Airways plc (2025) involved long-term absence linked to mental health – a scenario most HR professionals will recognise. The employer had done what many would consider the right thing by obtaining occupational health input. The problem was that before pressing ahead with a capability process, the employer failed to engage properly with what the medical input actually said. 

Unfortunately, compliance is not achieved by obtaining a report and filing it. In this case, the organisation failed to challenge their own assumptions and consider adjustments on an 

individual basis. Relying on standard processes is not enough. In disability discrimination, procedural failures can themselves amount to substantive discrimination, and this case is a direct illustration of that. 

Knowing about a condition is not the same as acting on it 

Garner v Thorpe Hall Leisure Ltd (2025) involved a claimant whose anxiety and depression affected her behaviour during a workplace confrontation. The employer pursued dismissal on the legitimate basis of maintaining professional standards in front of colleagues and customers, and the Tribunal accepted that aim. However, where it fell down was in the steps taken before that decision was made. 

Despite being aware of the employee’s mental health conditions, no medical report was obtained. The Tribunal concluded that the employee’s inability to regulate her behaviour during the disciplinary process was connected to her disability, and that reasonable adjustments to that process could have changed the outcome. This is a distinction many employers miss. Reasonable adjustments are not only based on what happens in the job but also extend to how a process is run, including its pace, format and the support made available throughout. 

Where employers need to focus 

These three cases point to the same underlying gaps in enquiry, documentation and in how medical evidence is used. Employers need to treat medical evidence as a working document and demonstrate that they understood what the report said, considered what it meant for the individual concerned, and made decisions in light of that advice. Where guidance is ambiguous or conflicting, employers should pause and address all the aspects rather than proceeding with their usual standards or assumptions. 

Managers should apply reasonable adjustments to the process itself, not only the role. Think about pace, communication format, additional support and whether standard procedures need to flex before and during any formal process. Document that thinking, even where the conclusion is that no adjustment is required. 

In addition, informal disclosures should be treated as the starting point for a conversation. Managers should be equipped to recognise when something an employee mentions – or a pattern of behaviour they observe – warrants a more structured conversation about health and support. Gaps in records where that conversation should have taken place are not something tribunals will view kindly. 

Finally, they need to build a clear trail of enquiry. What was disclosed? What steps were taken? What was considered and why? These should be properly documented to ensure all-around and evidence-based protection during the tribunal. 

The direction of travel in disability discrimination law is changing. While the definition is widening, tribunal scrutiny is getting sharper. Building genuine enquiry, careful documentation and meaningful engagement with adjustments into everyday people management is the only reliable way to stay on the right side of it. 

Disclaimer: The views expressed in this opinion piece are those of the author and do not necessarily reflect the views of The Well Crowd. This content is for information and discussion purposes only and should not be taken as medical, health, or professional advice.