12 October 2018
We have reported on cases under section 15 of the Equality Act 2010 before. This section says that a person (A) discriminates against another person (B) if (a) A treats B unfavourably because of something arising in consequence of B’s disability and (b) A cannot show that the treatment is a proportionate means of achieving legitimate aim. The section also says that the foregoing does not apply if A shows that A did not know and could not reasonably have been expected to know that B had the disability.
A number of cases have asked what “something arising in consequence of disability” means. How “close” to the disability does the “something” need to be?
A recent case – the facts
The Employment Appeal Tribunal considered this question in Sheikholeslami v University of Edinburgh. The Claimant was recruited Professor of Chemical Process Engineering following an interview in 2006. This case has a detailed and complex factual background. 4 years into the role the Claimant was diagnosed with work-related stress and depression and was absent from work, never to return to her employment. The Claimant raised a number of grievances relating to sex discrimination which led to a diversity review of the School of Engineering. This raised a number of issues around culture but did not find “gender bias as such”.
The Claimant wanted to return to work and that she saw a gradual reintegration via another school as a way back into the workplace after being absent for a year with work-related stress and depression. There were various internal meetings but the Tribunal found that the Claimant came to be “regarded as an individual to be distrusted and disliked in the School of Engineering. There was a view she had “overegged” her gender complaints and was making these complaints as a reaction to not having “got her way” in the School of Engineering”.
The Claimant’s health deteriorated. The Respondent took some steps to consider ways to extend the Claimant’s stay in the UK as her work permit was expiring but ultimately the Respondent wrote to the Claimant saying that as her work permit had expired it would not be legal to continue to employ her and she was dismissed on 12 April 2012.
The Employment Tribunal claims and outcome
A number of claims were raised, including a section 15 claim. The unfavourable treatment included her dismissal, the failure to address the Claimant’s work permit and seek an extension and a failure to apply the Respondent’s own procedures.
The Tribunal did not consider there to be any evidence that would allow it to conclude that the Respondent did not seek an extension of the Claimant’s work permit because of her disability (or because of anything arising in consequence of it such as her period of absence) nor that it failed to follow its procedure because of her disability. On the contrary, the Tribunal accepted that the Respondent believed that the Claimant was not prepared to return to work in the position for which the work permit had been granted and that, in these circumstances, it believed that there was no possibility of the Claimant’s work permit being extended. The Tribunal found that she was not dismissed because she was absent. She was dismissed because she was unwilling or unable to return to work in her existing post and this triggered issues. There was no evidence before the Tribunal that there was a causal link between the Claimant’s disability and her refusal to return to her post in the School of Engineering. The Tribunal said that the critical question was whether that was because of her disability or because of some other reason, such as she considered she had been badly treated in that department. The Tribunal decided that there was insufficient evidence before it to make the necessary link with her disability and so dismissed this claim.
The Appeal
The Employment Appeal Tribunal looked at this reasoning in detail and stated that the approach to causation in relation to section 15 claims under the Equality Act 2010 is well established. This requires an investigation of two distinct causative issues: (i) did A treat B unfavourably because of an (identified) something? and (ii) did that something arise in consequence of B’s disability? The first issue involves an examination of the putative discriminator’s state of mind to determine what consciously or unconsciously was the reason for any unfavourable treatment found. If the “something” was a more than trivial part of the reason for unfavourable treatment then stage (i) is satisfied. The second issue is a question of objective fact for the Employment Tribunal to decide in light of the evidence.
Adopting this approach, the first question was whether the alleged unfavourable treatment (or any of it) occurred and was because of the Claimant’s ongoing absence from her existing post at the School of Engineering and/or her failure to return to it (the identified ‘something’ on the Claimant’s case). That question involved a consideration of the reasons why each relevant decision-maker acted as he or she did in treating the Claimant unfavourably. Different treatment might have involved different decision-makers or different reasons. The Tribunal did not examine the matter in this level of detail and instead focused on three aspects of unfavourable treatment and implicitly accepted that unfavourable treatment occurred. The Tribunal accepted that the Respondent believed “that the Claimant was not prepared to return to work in the position for which the work permit had been granted and that, in these circumstances, it believed that there was no possibility of the Claimant’s work permit being extended”.
The second question for the Tribunal was whether the Claimant’s absence or failure to return to her existing post was as a matter of objective fact ‘something arising in consequence of [her mental health] disability’. In concluding that there was no evidence of any link between the Claimant’s disability and her absence or refusal to return to her post in the School of Engineering, the Employment Appeal Tribunal found that the Employment Tribunal had erred. Although the causal connection between the something that causes unfavourable treatment and the disability for section 15 purposes, may involve several links depending on the facts of a particular case, the Employment appeal Tribunal found that the Employment Tribunal did not contemplate this possibility. In other words, more than one relevant consequence of the disability may require consideration, but this was not considered: even if the Respondent mistreated the Claimant on the work permit issue because it believed she was not prepared to return, the Tribunal did not consider why the Claimant was not prepared to return to her existing post. The Tribunal’s use of “incorrect language of causation” (“because of her disability”) contributed to the error since that was too strict a causation test.
The critical question was whether on the objective facts, her refusal to return arose in ‘consequence of’ (rather than being caused by) her disability. This is a looser connection that might involve more than one link in the chain of consequences. The Tribunal did not approach it on that basis. The correct question was not asked in either paragraph; nor was it correctly answered by the Tribunal.
In short
The Employment tribunal adopted too narrow an approach to the question of causation in a claim for discrimination arising from disability and a claim for failure to make reasonable adjustments. The Tribunal should have asked itself whether the Claimant’s absence or refusal to return to work had arisen in "consequence of" her disability (and not whether the refusal to return to the previous role was "because of her disability or because of some other reason", such as having been badly treated).
This is a useful reminder of how wide these provisions can be and of the need to ensure that any treatment that could be related to a disability is properly considered and that such treatment can be properly justified in the usual way.
To discuss further please contact one of our BTO employment lawyers on 0141 221 8012.