The Employment Appeal Tribunal (EAT) has loosened the causal link between an employee's disability and the conduct which led to the unfavourable treatment by the employer, for the purposes of making out a discrimination arising from disability claim. It is sufficient if the employee's conduct arose as a consequence of their disability.
Section 15 of the Equality Act 2010 provides that discrimination arising from disability is when:
Recent decisions have taken full advantage of this broad wording. Risby is yet another case where the scope is found to be wider than one might expect, here in relation to the phrase "something arising in consequence of B's disability".
Mr Risby was a paraplegic and wheelchair-user. He also had a short temper, which was a personality trait and was not related to his disability. His employer organised for a training course to be held in a venue without wheelchair access. Upon discovering this, Mr Risby lost his temper, used offensive and racist language, and was subsequently suspended and then dismissed for gross misconduct.
At first glance, and as found by the Employment Tribunal at the first hearing, there does not seem to be a logical connection between the employee's conduct and his disability; he seems to have behaved as he did because of his short temper. This led the Tribunal to conclude that his dismissal was fair and his claim for discrimination arising from disability was dismissed.
However, the EAT concluded differently: if Mr Risby had not been disabled by paraplegia, he would not have been angered by his employer's decision to hold the workshop in a venue he could not access. His misconduct was the product of indignation caused by that decision. His disability was one of the two effective causes (his short temper being the other) of that indignation and thus the misconduct which ultimately led to his dismissal.
For the dismissal to constitute unfavourable treatment for the purposes of his section 15 claim, all that had to be established was that the conduct arose in consequence of Mr Risby's disability. It therefore seems that there can be a number of causal links leading to the unfavourable treatment, and only a loose connection to the employee's disability is required to make out a claim.
The case was remitted to the Tribunal for re-hearing, where his employer will seek to argue that Mr Risby's dismissal was a proportionate means of achieving a legitimate aim.
The increasing number of section 15 claims seen by Tribunals, coupled with this permissive approach to the interpretation of the legislation, should raise a red flag for employers.
It would be wise to undertake a rigorous examination of whether unfavourable treatment arises in consequence of an employee's disability.
Whilst each case offers a new question of fact and degree for consideration, a causal chain with several links may still shackle the employer to a claim for discrimination arising from disability.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at May 2016. Specific advice should be sought for specific cases. For more information see our terms & conditions on www.TLTsolicitors.com