For disabled employees the Equality Act 2010 sets out seven different types of discrimination. Of all the these it is the concept of discrimination arising from disability that I have found to be most useful when assisting employee in workplace disputes. I have discussed this before on the blog (see here and here) but, by way of recap, section 15 of the Equality Act 2010 states it is unlawful to treat a a disabled person unfavourably for something that is related to their disability unless the reason for doing so is to advance a legitimate aim and the way the employer has done this is proportionate.
The reason why a discrimination arising complaint is more flexible is because the requirement to be treated “unfavourably” is a wide concept that can apply to many situations. Secondly, the reason does not need to be because of disability which is the strict and complex causation test in direct discrimination cases. The flip side of this flexibility is that an employer can justify their treatment and if it is found to be legitimate and proportionate then there will be no discrimination.
To give a simple example: an employee has a mental health impairment which is a disability, the absence is unconnected to work, but has been on on long term sickness absence for two years during which the employer has frequently discussed the absence, provided support, and made adjustments to facilitate a return to work is dismissed from his role. The employee would be able to bring a complaint of disability discrimination that his dismissal in discrimination arising from disability.
This employee will be very likely to show that he was disabled. He will also be able to show that the dismissal was ‘unfavourable treatment’. The reason for the dismissal is not because he was disabled but rather because of his long sickness absence. However, this long sickness absence does arise in consequence of the disability (the disability is the reason for the absence). All the necessary ingredients for a claim are therefore in place – so has this employee been subject to discrimination? In all likelihood, no.
The reason for dismissing the employee – namely seeking to reduce sickness absence and reduce costs of replacement staff etc is very likely to legitimate aim. In addition the employer has kept the employee update, made reasonable investigations of issues preventing his return and suggested adjustments to hasten return to work, and waited a long time before considering the matter. One can never say never but it is likely that the employer’s conduct would be considered proportionate and there is no discrimination as the employer appears to have acted reasonably throughout.
That the unfavourable treatment in this example arose from disability is clear, in sickness absence cases that will often be the case. Some of the interesting aspects of a discrimination arising from disability claims has been in cases where disability is not obviously a relevant factor. The legislation identifies that discrimination occurs when “[the employer] treats [the employee] unfavourably because of something arising in consequence of [the employee’s] disability.” When can something be said to be “arising in consequence” of something related to disability?
The recent misconduct related EAT decision in Scott v Kenton Schools Academy Trust (2019) is not new law but does provide a helpful insight into the “arising in consequence” requirement. Mr Scott, a teacher, experienced long term anxiety and mental health impairments which were accepted to be a disability. Mr Scott was accused of effectively cheating in respect of student’s GCSE assessments by improving papers which was done on the instruction of another teacher. This was serious wrongdoing which he accepted but explained that his decision making was impaired because of his mental health disability.
At the employment tribunal they did not accept that the misconduct was because of something arising in consequence of disability, what the tribunal referred to as ‘causation.’ Explaining what the ‘causation test’ is in discrimination arising from disability case the EAT explained, at paragraph 44, that:
I observe that the tenor of all of this guidance [previous case law] is that, whilst it is a causation test, and whilst there must be some sufficient connection between the disability and the something relied upon in the particular case in order, for the “in consequence test” to be satisfied, the connection can be a relatively loose one.
This is a crucial issue. Where there is some impact of a disability on the ‘something’ for which an employer is imposing unfavourable treatment then it will normally be important in the context of employer run procedures (sickness, misconduct etc) to highlight this fact because, where this is engaged (and it often will be) this changes the test an employer must satisfy. This ‘loose’ test was explained in one of the leading cases on this type of claim in Pnaiser: “the ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.”
It is not hard to see that the misconduct in Scott is firmly in the category of ‘gross misconduct’ for which dismissal would normally be reasonable. This is especially the case given an unfair dismissal challenge would apply a band of reasonable responses test. However, where the loose causation test is applied (the disability had some significant effect, even if not the only or main reason) the employer must show that the dismissal is objectively proportionate which is a much more strenuous test and more fertile ground upon which to base a challenge to dismissal outcomes than just an unfair dismissal claim.
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