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Discrimination ‘arising from’ disability
[ch 7: pages 230-231]As already explained on page 193, direct discrimination against a disabled person is unlawful. For example, it would be direct disability discrimination to single out a disabled candidate from the pool of applicants to take a special typing test to check their typing skills.
In addition, section 15(1), EA 10 provides extra protection, not available to individuals with the other protected characteristics. Section 15(1), EA 10 prohibits discrimination “arising from” a person’s disability. This is where a disabled person is treated “unfavourably” because of something arising in consequence of their disability.
The employer has a defence if they can justify the unfavourable treatment as a “proportionate means of achieving a legitimate aim” (the same test is used in claims for indirect discrimination, see page 218). This is unlikely to be possible if there are still reasonable adjustments that could be made (Monmouth County Council v Harris [2015] UKEAT/0332/14/DA).
There will be no discrimination if the employer did not know, and could not reasonably be expected to know, that the individual was disabled (section 15(2), EA 10).
This kind of claim is for “unfavourable” not “less favourable” treatment. In other words, the claim does not require the disabled person to compare their treatment to that of a non-disabled person. An example might be withdrawing a job offer because of disability-related sickness absence. Whether something is “unfavourable” involves a broad judgment based on a tribunal’s “life experience”. For example, a generous pension policy was not “unfavourable” just because it could have been more generous (Williams v Trustees of Swansea University Pension & Assurance Scheme [2017] EWCA Civ 1008).
To form the basis of a claim, the unfavourable treatment must be due to “something” connected with the individual’s disability. That “something” (for example, a poor sickness record or unsatisfactory performance), need not be the only reason for the unfavourable treatment, as long as it is a significant reason.
The connection between the “something” and the disability can be quite loose. For example:
A wheelchair user was dismissed for gross misconduct after losing his temper and shouting racist abuse because he was frustrated that training had been arranged in a room without wheelchair access. Had he not been disabled, he would not have been upset by the decision and would not have lashed out. There was enough of a connection between the disability and the misconduct to trigger rights to protection under section 15, EA 10.
Risby v London Borough of Waltham Forest [2016] UKEAT/0318/15/DM
www.bailii.org/uk/cases/UKEAT/2016/0318_15_1803.html
A head of department with severe cystic fibrosis was struggling to manage his workload because of his condition. His requests for help were ignored. He was summarily dismissed for a lapse of judgment — showing an 18-rated film to a class of vulnerable 16-year olds after an exam. The tribunal found that had he not been struggling to manage his cystic fibrosis with inadequate support from the school, he would not have made the mistake of showing the film. There was enough of a connection between the disability and the misconduct to trigger rights to protection under section 15, EA 10.
City of York Council v Grosset [2016] UKEAT/0015/16/BA
See also Chapter 8: Dismissal due to long term sickness absence.