"Something arising" from disability - the stretchiest words of the Equality Act 2010

Author: Jason Braier

The protection against discrimination arising from disability under s.15 of the Equality Act 2010 is framed to give HR sleepless nights. Jason Braier explains why as he looks at how the courts and tribunals are construing "something arising".

The legal test

The wording of the legislation (see extract on the right) requires the identification of the unfavourable treatment and then consideration of two causative issues:

• Did A treat B unfavourably because of "something"?
• Did that "something" arise in consequence of B's disability?

The first question requires a factual enquiry into the alleged discriminator's state of mind. It is a search for what motivated the alleged discriminator to do the unfavourable act. The second - the focus of this article - is an objective question for the tribunal. It requires consideration of whether or not there is a causal link between the disability and the relevant "something".

While there is a knowledge defence to s.15 (s.15(2)) where the employer has no actual or constructive knowledge of the disability itself, that defence does not extend to whether or not the something arises from the disability.

Hence the sleepless nights for HR professionals who are advising on any treatment that is arguably unfavourable to a disabled employee or job applicant. Section 15 provides wide scope for inadvertent discrimination. That inadvertence may be costly unless the employer is able to overcome the quite considerable hurdles of showing justification.

An expansive construction

Just how generously is this second causative element construed? Very generously indeed. Here are a couple of general principles:

• The "something" need not be the sole or principal cause of the unfavourable treatment. It is enough if it is a significant or effective cause.
• There does not need to be a singular, direct causative link between the "something" and the disability. The chain between the two can have several links.

If we look at some examples of the second principle, we can see the lengths that tribunals and appeal courts are prepared to go to in order to find the causative test satisfied. They also highlight the care with which employers need to tread, and the latitude within which they need to think, when considering any actions that might be unfavourable to a disabled individual.

Let us start with the EHRC Employment statutory code of practice. At para.5.9, the code gives the example of a woman who, out of character, loses her temper due to severe pain from having cancer.

A similar example is found in the case of Risby v London Borough of Waltham Forest EAT/0318/15. There, a paraplegic employee already had a short temper, which was unrelated to his disability. However, when the location of internal training was changed to a room inaccessible to wheelchair users (and hence inaccessible to him), he shouted angrily (and offensively) at a junior member of staff and a senior manager. He was sanctioned for doing so. The "something" here was Mr Risby's act of shouting. Given that an effective cause of the shouting was the decision to place training in a room inaccessible to him as a result of his wheelchair use, the EAT held that the "something" arose in consequence of Mr Risby's disability.

Perhaps the high point of the causative approach to s.15 can be found in the Court of Appeal's decision in City of York Council v Grosset [2018] IRLR 746 CA. In this case, Mr Grosset was a secondary school teacher and a sufferer of cystic fibrosis. The treatment regime for cystic fibrosis sufferers is both intense and time consuming. As has been common in the teaching profession in recent years, Mr Grosset's workload increased and became overwhelming, placing him under stress. That stress was exacerbated by the time pressures of his cystic fibrosis treatment. Mr Grosset took the decision to show a class of 15- and 16-year-olds the 18-rated film, Halloween. He was dismissed for gross misconduct as a result. In a decision ultimately upheld by the Court of Appeal, the employment tribunal found it more likely than not that Mr Grosset's decision to show the film resulted from the level of stress he was under, which arose in part from the effect of his disability when the school placed increased work demands on him. The causative requirements were made out.

These cases emphasise the need for careful thought before taking potentially unfavourable action against a disabled employee. Employers should explore the possible connections between the disability and the motivation behind the action. Depending on the context, this may be done during a disciplinary process, through a risk assessment or occupational health referral, through informal discussion with the employee, or simply by giving the matter careful consideration.

The dangers of a negative reference

One area of potential inadvertence that has been considered by the Employment Appeal Tribunal (EAT) on more than one occasion in recent years concerns an applicant's rejection for a job following a bad reference.

In both Pnaiser v NHS England and another [2016] IRLR 170 EAT and South Warwickshire NHS Foundation Trust v Lee and others EAT/0287/17, a prospective employer was influenced by a negative reference when it decided to withdraw a conditional job offer.

Discrimination arising from disability is made out if the negative reference was an effective cause of the decision to withdraw the offer, and the effective cause of the negative wording in the reference arose from the individual's disability. In Lee, one of two referees had provided a reference concentrating on the sickness absences of a nurse diagnosed with knee arthritis, from which a large proportion of her absences arose. Although the decision to withdraw the offer was principally based on competency issues identified in a second reference that were unrelated to Ms Lee's disability, the tribunal found that the discriminatory reference had still significantly influenced the decision. The s.15 claim was made out.

A negative reference for a disabled prospective employee places the prospective employer in a real quandary. Although enquiries can be made to discern whether or not there was a discriminatory cause for the terms of the reference, the prospective employer is not off the liability hook if the previous employer falsely denies such a motivation. Even if the prospective employer makes active efforts to disregard the reference while still withdrawing the job offer, there remains the danger of a tribunal finding that it was an effective cause behind the job withdrawal decision, even if on an unconscious level. Perhaps the safest thing to do in those circumstances would be to delegate the decision to an alternative decision-maker who is wholly ignorant of the negative, discriminatory reference.

Some limits on the stretchiness

While the above examples show how heavily s.15 is loaded in favour of the disabled individual, there are some limits.

First, the test for whether or not something arises from the disability is not the "but for" test, ie would the "something" have arisen "but for" the individual's disability. In Ishola v Transport for London EAT/0184/18, where the unfavourable treatment resulted from erratic and incorrect payments of sick pay, the EAT held that it was not enough that the need for sick pay arose due to absences arising from Mr Ishola's disability. That merely provided a background context. The flaws in the payment system were technical and administrative, the unfavourable treatment was because of those flaws and those flaws did not arise in consequence of Mr Ishola's disability. Likewise, in Dunn v Secretary of State for Justice and another [2019] IRLR 298 CA, the Court of Appeal held that the poor and delayed handling of Dr Dunn's application for early retirement did not meet the causation threshold. The fact that Dr Dunn would not have been a victim of delay and incompetence but for his disability was irrelevant to the requirements of s.15.

Second, it is not enough for the claimant to believe the "something" arises from their disability when in fact it does not. That proposition stems from the unusual case of iForce Ltd v Wood EAT/0167/18. Mrs Wood has osteoarthritis and, when her employer asked its warehouse operatives to be prepared to move between benches, including those near the loading doors, she refused to do so. That refusal stemmed from her belief that this would lead to her working in colder, damper conditions, which would exacerbate her disability. Her belief was mistaken - the temperature was not materially different in any part of the warehouse. When Mrs Wood refused to obey her employer's instruction, she was given a final written warning.

Mrs Wood's s.15 claim succeeded before the employment tribunal, but was overturned on appeal. Given that the employment tribunal found as a fact that Mrs Wood was mistaken in believing her employer was requiring her to work in colder, damper conditions, there was not - as a matter of fact - a causative link between her refusal to obey the order to move between benches and her disability. It was not enough that Mrs Wood's refusal resulted from a mistaken belief in such a causative link. The position would have been different had Mrs Wood's mistaken belief (and her refusal to obey the order) resulted from, for example, stress caused by her disability, but her claim was not put in that way.

Finally, s.15 is unlikely to extend to a perceived disability. This has not yet been fully determined by the appeal courts, but a footnote in Chief Constable of Norfolk v Coffey [2019] IRLR 805 CA, a direct disability discrimination case under s.13 of the Equality Act 2010, suggests that this is correct.

This case concerned a police officer whose hearing difficulties were not bad enough to fall under the definition of disability, but who was treated less favourably by the police force because of its perception that her medical condition could develop into a disability in the future. The Court of Appeal said that, while the definition of "direct discrimination" under s.13 extends to a perceived disability, it is unlikely that this is the case under s.15 because the protection against discrimination is "against a disabled person". Although not mentioned in the Court's footnote, one can see the additional problem that it would be difficult to find that "something arose" because of an individual's disability, when the individual is in fact not disabled but mistakenly perceived to be disabled.