January 4, 2016

Only loose connection needed to find discrimination arising from disability

The Employee concerned was a finance officer who suffered from stress, anxiety and depression which resulted in extended absences from work off sick. During one of these periods she was reportedly seen working in a local pub. Consequently the Respondent arranged for covert surveillance. A few months later she underwent heart surgery and the following month was sent a letter by her employer telling her that an investigation was  taking place; however the allegations were vague and unparticularised. Shortly thereafter she received a letter telling her she was expected to return to work within the next 10 days and must have no further absences for 3 months. She was also told that she was at risk of redundancy.

She was unable to attend a series of meetings which took place due to sickness absence, and further correspondence from her employer requiring her to return to work caused her to feel bullied. She was eventually required to attend a disciplinary hearing in March 2011 after which she was dismissed for gross misconduct.

In upholding the unfair dismissal element of the claim, the Tribunal concluded that the employer had genuinely but wrongly believed that the Claimant was falsely claiming to be sick. The Tribunal considered that the employer did not have reasonable grounds for that belief. However with regard to disability discrimination the Tribunal concluded that there was insufficient connection between her disability and the unfavourable treatment.

The EAT however took a different view. They thought that the Tribunal had taken too strict a view of the causal link between the disability and the unfavourable treatment and in doing so looked at the legislative background to the creation of section 15 of the Equality Act, including the House of Lords (as it then was) decision in Malcolm regarding disability related discrimination under the Disability Discrimination Act.

The EAT held that Parliament had intended to loosen the causal connection between the disability and the unfavourable treatment following the decision in Malcolm. The fact that the Tribunal held that the disability must be the cause of the unfavourable treatment and not just the background, in the view of the EAT, ignored a third possibility arising from the “looser” language of section 15, which was that it was enough for the Claimant to show that the disability was “a significant influence on the unfavourable treatment, or a cause which is not the main or the sole cause, but is nonetheless an effective cause of the unfavourable treatment”.

This case and another recent EAT decision in Land Registry v Houghton demonstrates the relatively low hurdle which Claimants have to cross in order to satisfy section 15(1)(a). It will be enough for them to show that the unfavourable treatment has been caused by the outcome or consequence of the disability and that motive is irrelevant.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.

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