Posted by Gemma Ospedale, Partner
On 1 September 2016 Withy King LLP merged with Royds LLP. The trading name for the merged firm is Royds Withy King. All content produced prior to this date will remain in the name of the firms pre-merger.
Guidance on discrimination arising in consequence of disability
In Pnaiser v NHS England and another the EAT has given guidance on the correct approach to a Section 15 Equality Act claim for discrimination arising in consequence of a disability. It highlights that the duty to make reasonable adjustments is only one part of the protection given to disabled employees. The Claimant’s disability required her to take a significant amount of sickness absence from her post at the Coventry Council. When she was made redundant she was offered a position with NHS England subject to satisfactory references. However the offer was withdrawn when her former, and potential new, manager spoke, during which her sickness absence was highlighted. She brought a claim under Section 15 for discrimination arising in consequence of disability i.e. that the mention of her sickness absence, which was due to a disability, was the reason why the offer was withdrawn.
The analysis by the new EAT President of Section 15 in terms of causation explained that, “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”. Here, the Employment Tribunal was found to have been wrong to apply a test which required the Claimant to show, before the burden of proof could shift, that the only inference which could be drawn regarding the conduct of her former line manager was a discriminatory one. In fact all that was needed was a prima facie case that her absence record was the reason in the manager’s mind for giving a negative reference, whether consciously or otherwise.
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