The claimant in Hartley v Foreign and Commonwealth Office Services, a chartered engineer who suffered with Asperger's syndrome, was dismissed for capability reasons.
One of the issues for the Tribunal hearing her disability discrimination claims was whether there had been harassment "related to" her disability. The harassment claim centred on remarks made to her at a performance improvement plan meeting. One manager apparently asked her if she was not intelligent enough to understand a spreadsheet; the other referred to the claimant as being constantly rude and made a comment to the effect that she thought this was a facet of her personality rather than her disability.
The Tribunal decided that neither comment was related to her disability. There was no reason to think that a failure to understand the spreadsheet was connected to her disability as the medical evidence didn’t suggest any effect on her ability to understand things. As for the second comment, the Tribunal's view was that this was an observation which expressly distinguished rudeness from the claimant's disability.
The EAT concluded that the case had to be heard again. The Tribunal had focused on the perception of those making the remarks. This was not the correct approach – whether conduct is "related to" a disability has to be determined by looking at the evidence as a whole; the view of the person who made the remark as to whether their conduct relates to the recipient's disability is relevant but not decisive. As the EAT pointed out, A can engage in conduct relating to B's disability without even knowing that B has a disability.