There are few certainties in life and navigating employment law is certainly not one of them. As a recent Employment Appeal Tribunal case demonstrates, even if an employer acts lawfully, they may still find themselves at tribunal and can even lose. This, of course, is why there is an appeal process and a very useful takeaway from The Scottish Ministers v James Blair [2025] EAT 74 is the importance of not only doing the right thing, but being able to present clear and compelling evidence of this; it may help the tribunal make the right decision.
The Case in Brief
JB was employed as a team leader on a fixed-term contract and brought claims of disability discrimination and failure to make reasonable adjustments after his contract ended following an unsucesful probationary review. The Employment Tribunal ruled in his favour.
However, the Employment Appeal Tribunal (EAT) overturned most of that decision.
“The ET erred in law in viewing the respondent’s dismissal as direct discrimination… They ought to have dismissed the complaint of discrimination.”
So, What Went Wrong?
The EAT found the original tribunal had:
- Failed to identify a proper non-disabled comparator.
- Misapplied the legal test for direct discrimination.
- Incorrectly found that a seven-day absence threshold disadvantaged the claimant.
- Gave inadequate reasoning for allowing late claims.
What’s crucial is this: the employer ultimately succeeded on appeal — but, as is often the case, could possibly have avoided the claim succeeding at first instance if it presented evidence in such a way as to encourage the tribunal to give the correct considerations. In this particualr case, by clearly evidencing how a non-disabled comparator would have been treated.
The Missed Opportunity
Had the employer actively presented evidence showing how a similarly situated, non-disabled employee would have been treated — particularly in relation to probation and absence — the Tribunal might not have made the error in the first place.
This wasn’t about whether the employer did discriminate (they didn’t), but whether they equipped the Tribunal with the evidence to see that clearly. They didn’t — and paid the price.
Now, one might argue that this is doing the work of the tribunal for them, and indeed the evidence was there as the EAT set out:
“The findings made by the ET are sufficient for a conclusion… the appellant would have extended the probation of any non-disabled employee who had performance issues such as those we refer to above.”
However, anything an employer can do to support the tribunal in considering the facts and evidence appropriately is well worth the effort.
Key Takeaways for HR and Managers
1. Tribunals Can Get It Wrong — But YOu Can Help Them Get It Right
Even compliant employers can be penalised if their reasoning, processes, and comparators aren’t clearly evidenced at the tribunal hearing.
2. Evidence of Consistency Is Critical
If you rely on performance or attendance as grounds for action, present evidence about how others have been treated in similar situations — especially non-disabled comparators.
3. Probation Reviews Must Be Well-Documented
In this case, performance concerns were the real issue — but attendance thresholds clouded the picture. Keep clear records separating the two and be clear that decisions, in this case to dismiss, were based wholly on one, not the other (where, as here, that is the case).
4. Be Prepared to Prove Timeliness and Adjustments
If reasonable adjustments were made, document not just what was done, but when and why. And, equally important, be clear about when and why decions not to make adjustments were made. A delay in communicating decisions can undermine credibility and makes it more difficult to assess when a claim might be out of time.
The Wider Message
This case isn’t just about disability law — it’s about procedural rigour. Managers should assume that every decision may one day need to be justified in front of a tribunal. And that tribunal may not see the whole picture unless you paint it for them — clearly, consistently, and legally.
Don’t Let a Tribunal Misunderstand Your Case
If you’re managing performance or absence issues, the right decisions are only half the battle — how you document and present those decisions matters just as much.
Let’s make sure your policies and processes can withstand scrutiny. Get in touch today for expert advice grounded in current case law and tribunal practice.