DLA Piper’s latest case report highlights the relatively low obstacle that claimants have to hurdle when bringing a claim for discrimination arising from disability under s.15 of the Equality Act 2010.
Discrimination arising from disability
Hall v Chief Constable of West Yorkshire Police
Ms Hall was employed as a finance officer for West Yorkshire Police from 1988 until 2011.
During her employment, she had taken extended periods of sickness and suffered from stress caused by supraventricular tachycardia, an abnormally fast heart rate.
After receiving a report that Ms Hall had been seen working in a public house while off sick, West Yorkshire Police arranged covert surveillance of her.
She subsequently had heart surgery, and her employer then sent her a notice of investigation containing “vague” allegations against her. Shortly after, it sent her a letter stating that she was expected to return to work within 10 days and to have no further absences for a period of three months.
Ms Hall’s employer then invited her to a series of meetings, which she was unable to attend due to illness.
The meetings culminated in Ms Hall’s dismissal.
Ms Hall brought claims for unfair dismissal and discrimination arising from disability under s.15 of the Equality Act 2010.
Discrimination arising from disability: a definition
A form of discrimination introduced by the Equality Act 2010 where the claimant has been treated “unfavourably because of something arising in consequence” of his or her disability. Such treatment can be justifiable.
Employment tribunal decision
The employment tribunal upheld the unfair dismissal claim, but dismissed the disability discrimination claim.
In making its decision, the employment tribunal concluded that the s.15 claim was not made out because of the remoteness of the connection between Ms Hall’s disability and the unfavourable treatment.
It was the employment tribunal’s view that s.15 requires the disability to be the cause of the employer’s action, and not merely the background circumstance.
The tribunal concluded that the motivation for the unfavourable treatment was the genuine, albeit wrong, belief that Ms Hall was fraudulently taking sick leave.
Ms Hall appealed against the employment tribunal decision and argued that the tribunal had adopted the incorrect causation test.
She argued that s.15 is satisfied once the employer knows of the disability and something that causes the unfavourable treatment arises in consequence of that. West Yorkshire Police argued that the link between Ms Hall’s disability and her dismissal was too remote.
The EAT upheld the appeal and concluded that the tribunal had misunderstood the effect of s.15 of the Equality Act 2010 and had made three errors. The tribunal had incorrectly:
- considered it necessary for Ms Hall’s disability to be the cause of West Yorkshire Police’s action;
- contrasted the cause of the action and the background circumstances and in doing so had ignored the possibility of the looser language of s.15, namely “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”; and
- taken into account the employer’s motivation for the unfavourable treatment, which was irrelevant.
The EAT held that, had the employment tribunal directed itself correctly, the only possible conclusion was that the necessary causal link between Ms Hall’s disability and the unfavourable treatment had been established.
Implications for employers
This case further demonstrates the difference between a claim under s.15 and a direct discrimination claim under s.13 of the Equality Act 2010.
There is a relatively low obstacle for claimants to satisfy s.15 of the Equality Act 2010. The motivation of the employer is irrelevant and the claimant will be required to show that the unfavourable treatment was caused by an outcome or consequence of the claimant’s disability.
For a claimant to establish a claim of direct discrimination under s.13, he or she must establish that the less favourable treatment was because of a protected characteristic. The protected characteristic has to be the employer’s conscious or subconscious reason for the less favourable treatment.
However, employers should remember that they can successfully defend a s.15 claim if they can justify the treatment on the basis that it was a proportionate means of achieving a legitimate aim.