In Cunningham v Financial Conduct Authority an ET upheld C’s claim of discrimination because of something arising in consequence of his disability under S.15 of the Equality Act 2010. C is a qualified barrister, employed as an associate lawyer and suffers from chronic kidney disease and right upper limb difficulties. C was given an appraisal score of 1 which results in no prospect of a pay rise or of a bonus. The reasons were twofold: (1) his uncharacteristic poor project board case update reporting, where normally his drafting was strong and clear; and, (2) his refusal to manage a case which was within the scope of his role. The ET found that both were caused by the symptoms of C’s kidney disease, i.e. profound fatigue and poor concentration. In turn, the unfavourable treatment – the appraisal score of 1 – was because of something arising from C’s kidney disease, namely impaired performance caused by severe fatigue, and the employer could not justify its actions.

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