Equality legislation protects employees and others against discrimination arising from a disability. This requires employment tribunals to apply a wide lens to all the relevant facts in order to determine whether an individual has suffered unlawful discrimination in consequence of their disability. A recent decision from the Employment Appeal Tribunal (EAT) demonstrates it is all too easy for tribunals to get this wrong and focus on the narrow (and wrong) question of whether the discrimination was because of the disability.
Section 15 of the Equality Act 2010 provides protection for employees and others from being treated unfavourably because of something arising from their disability, not necessarily the disability itself. This is a causation test which is a different test to those which apply to other forms of disability discrimination (such as failure to make reasonable adjustments).
This causation test is very broad and can encompass several links in a chain of facts. It therefore requires tribunal’s to look at cases through a very wide lens to consider whether the unfavourable treatment was because of something arising in consequence of the disability. This involves two stages: (i) did A treat B unfavourably because of an (identified) something? and (ii) did that something arise in consequence of B’s disability?
In the case of Sheikholeslami v University of Edinburgh, Professor Roya Sheikholeslami, who suffered from anxiety and depression, raised complaints with her employer, the University of Edinburgh, about the way she was treated by colleagues. She asked to be transferred to another department and, when that request was refused, she was signed off with workplace stress, anxiety and depression. She remained absent, refused to return to her position, and was dismissed. She brought a claims for disability discrimination (both failure to make reasonable adjustments and a section 15 claim) .
When considering her case, the tribunal asked whether her refusal to return was “because of her disability or because of some other reason [such as ill treatment by colleagues]”. Based on this question, the tribunal ruled Professor Sheikholeslami had not been dismissed because of her disability.
Employment Appeal Tribunal decision
The EAT held that the tribunal had taken the wrong approach to causation; it had been too narrow and had failed to consider whether the unfavourable treatment was in consequence of the disability.
To ask whether the dismissal was “because of” the disability was incorrect and this approach was far too narrow since the reasons for Professor Sheikholeslami’s refusal to return to work may have been interlinked; her anxiety may have been linked to ill treatment, for example.
Instead, the EAT found that the key question was whether Professor Sheikholeslami’s refusal to return to her post was in consequence of her depression, anxiety and stress. The tribunal should have considered why she was unwilling to come back to work. The EAT said, in this case, “the disability, its cause, and its effects are all so interlinked”, and the narrow approach adopted by the tribunal was wrong.
The tribunal’s decision was therefore overturned.
This case demonstrates how claimants can succeed in disability discrimination claims using section 15 as the legal test which tribunals must apply is, potentially, so wide. This is a very claimant friendly section of the Equality Act which may provide more protection for an individual than say direct discrimination or reasonable adjustment provisions. It is not enough for an employer to show they did not discriminate directly because of someone’s disability, the wide factual circumstances and consequences of a disability will be highly relevant.