XYZ v Birmingham City Council: EAT remits disability knowledge, justification and time limit issues

The Employment Appeal Tribunal has partly allowed an appeal by a former council employee, sending questions on knowledge of disability, justification and time limits back to the original tribunal.

In XYZ v Birmingham City Council [2026] EAT 152, HHJ Feeny allowed four of seven grounds. The claimant is protected by a permanent anonymity order.

The claimant resigned in October 2022, treating himself as constructively dismissed, after a disciplinary process that followed an altercation with a colleague in November 2021. The Midlands West Employment Tribunal upheld the unfair dismissal claim on the council's concession but dismissed the discrimination complaints. It accepted that the conduct under investigation arose in consequence of PTSD, but found that the council lacked knowledge of that disability and that the process was justified in any event. It found many age harassment allegations proved but dismissed them as about six months out of time.

The harassment ground failed. The tribunal had found that the colleague's conduct was not influenced by any perception of the claimant as vulnerable. HHJ Feeny treated this as a finding of motivation, not an application of the "related to" test in section 26 of the Equality Act 2010, and so declined to decide whether knowledge of disability is required. He also rejected the argument that the tribunal should have prompted a section 15 amendment, citing Moustache v Chelsea and Westminster Hospital NHS Foundation Trust [2025] EWCA Civ 185.

On discrimination arising from disability, the judge rejected the contention that a November 2021 conversation with a line manager fixed the council with knowledge. The relevant disability was PTSD, which the claimant did not know he had until March 2022. Awareness of mental health difficulties generally was not enough.

However, the claimant's email of June 2022 disclosing PTSD arguably changed the position. The tribunal had not considered whether the council acquired knowledge between June and October 2022, and had not properly addressed the complaint that the disciplinary process was continued until resignation. The council's argument that occupational health advice would not have revealed a causal link was misplaced, since Pnaiser v NHS England [2016] IRLR 170 requires no such knowledge.

The tribunal's justification finding also could not stand for that later period, since it did not properly balance discriminatory effect against the council's needs or consider dropping the charges or seeking occupational health advice.

The constructive dismissal ground succeeded, partly because it depended on those issues. The tribunal had also twice asked whether the claimant resigned in response to the "something arising", rather than the unfavourable treatment because of it. HHJ Feeny suggested the council's concession of a breach of trust and confidence, whose scope was unclear, may have hindered the tribunal.

Challenges to the burden of proof on a "grass" allegation and to the finding that the dismissal was not age discrimination were dismissed. The colleague had acted because the claimant complained, and the resignation letter did not cite his conduct as a reason for leaving.

The time limit ground succeeded. The tribunal said there was no evidence explaining the delay, but it had overlooked half a sentence in a 420-paragraph witness statement saying that bringing a claim would be "triggering". It also wrongly treated closing submissions as not being evidence, contrary to Doherty.

The matter returns to the same tribunal. HHJ Feeny rejected a request for a fresh panel, describing the original tribunal as scrupulously fair. The remitted issues are knowledge of PTSD between June and October 2022, whether continuing the process was unjustified unfavourable treatment, the constructive discriminatory dismissal claim, and whether any upheld claims were presented within a just and equitable period.