Employers should succeed in striking out a claim where, putting the claimant’s case at its best, there is still no evidence of an essential part of the claim. The claimant’s hope that “something may turn up” later in the claim will usually be insufficient to avoid strike-out.

The EAT upheld the strike out of a disability discrimination claim where there was no evidence that the managers making the relevant recruitment decision knew of the claimant’s disability. The hope that the managers might admit to knowledge under skilled cross-examination was not sufficient to allow the claim to proceed. Presumably a claimant would have to show that the chance of something probative turning up on cross-examination – or perhaps in disclosure – was realistic. (Patel v Lloyds Pharmacy)

The ECJ has confirmed that a person who can work to a limited extent or limited hours can still be “disabled”. Relying on the UN Convention on the Rights of Persons with Disabilities (to which the EU itself signed up as part of the Treaty of Lisbon), the ECJ ruled that disability requires an impairment that “in interaction with various barriers” may hinder the full and effective participation in professional life “on an equal basis with others”. UK law focuses on the effect on “normal day-to-day activities”, which has been held to exclude specialist work-based activities; this approach may need to be adjusted to reflect this ECJ ruling.

The ECJ also confirmed that the origin of the disability is irrelevant – it can be caused by a temporary illness if the disability is sufficiently long-term. A reduction in working hours can be a reasonable adjustment if it enables the individual to remain in employment.

Finally, the Court considered that a national law allowing termination on reduced notice after 120 days’ absence in one year was potentially indirect discrimination. The ECJ ruled that it might be appropriate to adopt such a rule to achieve the Member State’s legitimate aim of giving employers the confidence to recruit and retain employees likely to have repeat absences – but this was for the national court to decide.

Directors’ service contracts often contain this type of early termination provision and the ruling serves as a reminder of the potential for indirect disability discrimination claims when operating such a clause; justification will be key and the ECJ view on potentially legitimate aims is therefore of interest. The same potential for indirect discrimination (unless justified) applies to absence control policies given that disabled workers have the additional risk of disability-related illness and therefore a greater risk of accumulating days of absence and reaching the absence control policy limit. (HK Danmark v Dansk, C-335 & 337/11)