The Employment Appeal Tribunal has remitted key disability discrimination and time-limit issues after finding that an Employment Tribunal failed to properly address the effect of newly disclosed PTSD on an ongoing disciplinary process.
What did the EAT decide?
In XYZ v Birmingham City Council [2026] EAT 152, dated 5 October 2026, His Honour Judge Feeny allowed parts of the appeal against the judgment of the Employment Tribunal, remitting issues concerning discrimination arising from disability, constructive discriminatory dismissal and time limits for further consideration.
The appeal concerned allegations of disability discrimination, age discrimination, harassment, constructive discriminatory dismissal and the late presentation of discrimination complaints. The EAT held that the Employment Tribunal had erred in its treatment of the claimant’s section 15 Equality Act 2010 complaint concerning the continuation of disciplinary proceedings.
The EAT found that the Tribunal had failed to consider whether the council acquired knowledge that the claimant was disabled by reason of PTSD after he disclosed the diagnosis in June 2022 and, if so, whether continuing the disciplinary process after that point amounted to unfavourable treatment because of something arising in consequence of his disability.
The appeal was therefore allowed on Grounds Two, Three, Four and Seven. Grounds One, Five and Six were dismissed.
What led to the appeal?
The claimant was employed by Birmingham City Council, initially as a trainee estate caretaker, before being promoted to a supervisory role in autumn 2021. He subsequently became involved in a dispute with an older colleague, Lee Marsh.
The dispute culminated in an incident on 5 November 2021. The Employment Tribunal found that Mr Marsh physically threatened the claimant with a chair, while the claimant also accepted that he became angry, shouted and swore.
Both employees became subject to disciplinary proceedings. The investigation into the claimant continued until the end of April 2022, when the disciplinary allegation was upgraded from misconduct to gross misconduct.
A significant feature of the case was that the investigation had not taken account of a contemporaneous email from a manager which tended to support the claimant’s version of events and implicated Mr Marsh to a greater extent.
On 7 June 2022, the claimant wrote to the council and disclosed that he was a sufferer of PTSD, anxiety and mild depressive disorder. He later brought a formal grievance, but the council declined to initiate its grievance procedure and instead told him that the matter should be used as mitigation in the disciplinary process.
The claimant resigned on 16 October 2022, regarding himself as constructively dismissed.
Why did the continuing disciplinary process matter?
The original Employment Tribunal accepted that the behaviour leading to the disciplinary investigation was something arising in consequence of the claimant’s PTSD. However, it concluded that the council did not have the necessary knowledge of the disability at the relevant times and that the disciplinary decisions were justified as a proportionate means of achieving a legitimate aim.
The EAT found a significant difficulty with that approach. The claimant’s case was not limited to the initial decision to subject him to disciplinary proceedings or the decision in April or May 2022 to upgrade the charge. He also relied on the continuing disciplinary process up to his resignation as a separate element of unfavourable treatment.
That distinction mattered because the claimant disclosed his PTSD diagnosis in June 2022. The EAT held that the Employment Tribunal had failed to consider whether the council’s knowledge of the disability changed at that point and whether the disciplinary proceedings should subsequently have been reviewed, paused or discontinued.
The EAT also rejected the suggestion that the council needed to know that the claimant’s behaviour arose from his PTSD in order for section 15 liability to potentially arise. The relevant question was whether the council knew, or ought reasonably to have known, that the claimant was disabled.
What was wrong with the constructive dismissal test?
The EAT also found that the Employment Tribunal had applied the wrong test when considering whether the constructive dismissal was discriminatory under section 15 of the Equality Act 2010.
The Employment Tribunal had asked whether the claimant resigned in response to “something arising in consequence of disability”. Judge Feeny held that this was not the correct formulation.
The correct question was whether the claimant resigned in response to the unfavourable treatment which was because of something arising in consequence of his disability and which could not be justified by the respondent.
The correct test is whether the Claimant resigned in response to the unfavourable treatment that was because of something arising in consequence of disability.
— His Honour Judge Feeny, [2026] EAT 152
The EAT said this error appeared twice in the Employment Tribunal’s judgment and therefore could not simply be treated as an unfortunate choice of wording.
Because the Tribunal must reconsider whether the continuing disciplinary proceedings amounted to discrimination arising from disability, it must also reconsider whether the constructive dismissal itself amounted to disability discrimination.
What did the EAT say about time limits?
The claimant’s age discrimination complaints had been found to include a number of allegations that were otherwise meritorious, but the Employment Tribunal dismissed them because the ET1 had been presented around six months late and it was not just and equitable to extend time.
The EAT found that the Employment Tribunal had been wrong to state that there was no evidence explaining why the claim had been presented late.
In particular, the claimant had referred in his witness statement to the fact that bringing a claim and having to relive the events would be “triggering”. He had also relied on his belief that there had been conduct extending over time.
The EAT held that this evidence should have been taken into account. It also found that the Employment Tribunal had wrongly treated reasons advanced in closing submissions as not being evidence, contrary to the guidance considered in Doherty v The Training and Development Agency for Schools.
Ground Seven therefore succeeded, and the issue of whether the relevant discrimination claims were presented within a further period that was just and equitable was remitted for reconsideration.
What happens next?
The case will return to the same Employment Tribunal rather than being sent to a freshly constituted tribunal. Judge Feeny concluded that the original Tribunal had been scrupulously fair to the claimant and that there was no reason to believe it would approach the remitted issues with a closed mind.
No further evidence needs to be heard. The Employment Tribunal can reconsider the remitted matters on the evidence it has already heard.
| Issue | EAT position |
|---|---|
| Knowledge of PTSD | Whether Birmingham City Council had knowledge of the claimant’s PTSD at any point between June and October 2022. |
| Continuing disciplinary proceedings | Whether continuing the disciplinary proceedings amounted to unfavourable treatment because of something arising in consequence of disability and whether that treatment could be justified. |
| Constructive discriminatory dismissal | The disability discrimination claim arising from the claimant’s constructive dismissal must be reconsidered. |
| Time limits | Whether the upheld discrimination complaints presented outside the primary limitation period should nevertheless be allowed because it was just and equitable to extend time. |
The EAT therefore did not finally determine the outstanding disability discrimination claims. Instead, it set aside the relevant conclusions and sent them back to the Employment Tribunal for further consideration.
The judgment illustrates the importance of examining the point at which an employer acquires knowledge of a disability when disciplinary proceedings continue over time. It also reinforces the need for tribunals to apply the correct statutory test when assessing whether a constructive dismissal is discriminatory.
Frequently asked questions
What was the main issue in XYZ v Birmingham City Council?
The appeal concerned disability discrimination, age discrimination, harassment, constructive discriminatory dismissal and the extension of time for late discrimination complaints.
Why did the disability discrimination appeal succeed?
The EAT found that the Employment Tribunal failed to consider whether Birmingham City Council acquired knowledge of the claimant’s PTSD after his June 2022 disclosure and whether the continuing disciplinary process after that point amounted to discrimination arising from disability.
Did the EAT find that the claimant had been discriminated against?
No. The EAT did not finally determine the outstanding disability discrimination claims. It held that the Employment Tribunal had made errors of law and remitted the relevant issues for reconsideration.
Which grounds of appeal succeeded?
Grounds Two, Three, Four and Seven succeeded. Grounds One, Five and Six were dismissed.
What happened to the age discrimination claims?
The EAT did not disturb the Employment Tribunal’s substantive approach to the age discrimination claims. However, the issue of whether the relevant claims were presented within a further period that was just and equitable was remitted because the Employment Tribunal had overlooked evidence explaining the delay.
Will the case be heard by a new Employment Tribunal?
No. The EAT directed that the matter be remitted to the same Employment Tribunal. Judge Feeny considered that no further evidence needed to be heard and that the original Tribunal could reconsider the issues on the evidence already before it.