The Employment Appeal Tribunal keeps the scope of disability discrimination wide…and employers on their toes.
What's the law?
It will come as no surprise that an employer cannot treat an employee unfavourably simply because they are disabled. But the Equality Act 2010 also prohibits a form of discrimination where an employer treats an employee unfavourably "because of something arising in consequence of the employee's disability", unless it can be objectively justified.
For example, say an employee is dismissed because she is frequently absent from work in order to attend chemotherapy sessions. In those circumstances, the employee is not dismissed because she has a disability (i.e. cancer) but because she is absent. Still, because her absences are something which arise as a result of her disability, the employer will have discriminated against her unless it can justify the treatment as a proportionate means of achieving a legitimate aim.
So there are three key questions:
- Did the employee's disability cause or result in "something" (e.g. absences from work)?
- Did the employer treat the claimant unfavourably (e.g. dismiss her) because of that "something"?
- If the answer to both of the above is "yes", is the treatment a proportionate means of achieving a legitimate aim?
In Sheikholeslami v University of Edinburgh, the Claimant had been appointed Professor in the School of Engineering at the University of Edinburgh in May 2007. In January 2010, she was diagnosed with work-related stress and depression, and from then on absent from work. She attributed her condition to the sex discrimination she had allegedly experienced at the school. By January 2011, having been absent for a year with the same condition, the Claimant proposed a phased return to work via another School in the University. Her request was refused and so the parties reached an impasse. The Claimant further refused to explore, at her employer's request, a phased return to work in conjunction with an occupational health assessment. Meanwhile, antipathy against the Claimant grew among colleagues: both her PhD student and laboratory were reallocated; and some refused to correspond with her directly.
The University did not renew the Claimant's work permit on the basis that she seemed unwilling and/or unable to return to the post for which it was initially granted. She was dismissed and claimed (among other things) discrimination arising in consequence of her disability.
What did the Tribunals say?
In the Employment Tribunal ("ET"), it was agreed that the Claimant's work-related stress and depression constituted a disability. The Claimant argued that she was dismissed because she was absent, and that she was absent because she was disabled. The ET disagreed: the Claimant was dismissed because "she was unwilling or unable to return to work in her existing post and this triggered issues with her work permit". Further, according to the ET, there was no evidence of a "causal link" between her disability and her refusal to return to her post. The critical question was whether the Claimant's refusal to return to the post was "because of her disability or because of some other reason, such as she considered she had been badly treated in the department". Finding the latter to be true, her claim was dismissed.
On appeal, the Employment Appeal Tribunal found for the Claimant. The ET had erred by approaching causation as a binary question. Instead, it should have asked why the Claimant was unable or unwilling to return, and borne in mind that there may be "several links" between the disability and the "something". More than one relevant consequence of the disability may require consideration. Further, the Claimant was absent because of her disability; she believed her disability was caused by her discriminatory treatment at the School; and she perceived hostility from her colleagues at the School as a result of her disability. Accordingly, in a case like this, "where the disability, its cause and its effects are all so interlinked…the broad causation question [in such claims] is capable of being satisfied".
What does this mean for employers?
Sheikholeslami confirms the legal position that: (i) there may be more than one link between the disability and the "something"; and (ii) more than one relevant consequence of the disability may need to be considered. Further, it follows the case of Grosset last spring, where the Court of Appeal held that it is immaterial whether the employer knows that the "something" has arisen in consequence of the disability.
All this creates a rather daunting challenge for employers trying to understand whether they may be discriminating against a disabled employee. However, it is worth considering the following:
- Don't rush to conclusions: Employers may wish to tread carefully if they know that an employee is or may be disabled. The effects of disabilities are not always obvious or consistent. This is also a complex and unpredictable area of law. As a result, it is extremely difficult for employers to know with certainty whether or not they are dealing with "something" arising in consequence of a disability. In fact, it may often be advisable for employers simply to assume that they are (unless they very obviously are not) and to consider instead whether their treatment of the employee can be justified.
- Is there a justification? As discussed above, unfavourable treatment that would otherwise be discriminatory can be justified if the employer can show it to be a proportionate means of achieving a legitimate aim. Typically, genuine concerns relating to business needs, economic efficiency, health and safety etc. will suffice for the purposes of establishing a legitimate aim (provided that the aim is not solely to reduce costs). Proportionality is a little trickier, essentially requiring that there are no less discriminatory means by which that aim can be achieved.
- Remember reasonable adjustments: Employers have a separate duty under Section 20 of the Equality Act 2010 to make reasonable adjustments in the workplace for disabled employees. This duty (including sanctions for non-compliance) exists regardless of whether there is also discrimination arising in consequence of a disability. That said, employers arguing that their treatment of a disabled employee is a proportionate means of achieving a legitimate aim may more easily prove their case if they have made such adjustments; certainly, they will struggle if they have not. Further, the employer who has been serious about making reasonable adjustments for a disabled employee may, in the event of a dispute, find that employee more willing to enter into dialogue than pursue a claim.