In the case of Peninsular Business Services Limited v Baker the Employment Appeal Tribunal (EAT) has pointed out something that might seem obvious at first glance: namely that an employee cannot claim harassment for their disability unless their condition satisfies the definition of disability in the Equality Act 2010. Here the employee had asserted he was dyslexic but had not shown that his particular condition had the characteristics of a "disability" under the Equality Act. When he sued for harassment, based on covert surveillance of his activities outside work, the EAT found his lack of a proven disability under the Equality Act was fatal to his case.

At first glance this case may appear obvious but be careful. Remember there are several ways in which someone who does not have a "protected characteristic" can still be covered under the Equality Act. For example there is discrimination by association, the famous example being the mother of a disabled son who had suffered humiliation on account of her son's disability. There is also the well-known case of a heterosexual man being subjected to abuse from his colleagues on the basis that they said he was gay. Perhaps most importantly a claim of victimisation can still exist if someone mistakenly but in good faith believes they are covered by the Equality Act and then suffers a detriment because they carried out a “protected act” (usually an assertion that the employer has breached the Equality Act in its treatment of them).

As is so often the case in employment law, the safe advice has to be to treat individuals reasonably and try to accommodate them so as to avoid litigation rather than rely on legal technicalities.