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Discrimination ‘arising from’ disability
[ch 7: pages 241-243]As already explained, 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 because of their disability.
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 229). An employer is unlikely to be able to show this if, at the date of the unfavourable treatment, there are still reasonable adjustments that could be made (Monmouth County Council v Harris [2015] UKEAT/0332/14/DA).
An employer’s actions are unlikely to be proportionate if there were less discriminatory ways of achieving the same aim:
Dr Ali was dismissed from a GP Practice after a period of long-term sickness absence, following a heart attack. The EAT ruled that the dismissal was discriminatory. His employer had a legitimate aim - the need to provide high quality patient care, but they failed to act proportionately, because they did not consider the possibility of a return to work on a part-time basis before dismissing Dr Ali.
Ali v Dr Torrosian & Others [2018] UKEAT/0029/18/JOJ
This kind of claim is based on “unfavourable” not “less favourable” treatment. In other words, the disabled person does not have to compare their treatment to that of a non-disabled person. An example of unfavourable treatment 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”. Something is not unfavourable just because it could have been better. For example, in Williams v Trustees of Swansea University Pension & Assurance Scheme [2018] UKSC 65, the Supreme Court ruled that a generous early retirement pension benefit was not “unfavourable”, because if Mr Williams had not been disabled, he would not have qualified for any early pension at all.
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 moved to 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 [2018] EWCA Civ 1105
There can be discrimination arising from disability even if the disability is not the only or the immediate cause of the “something” that leads to the unfavourable treatment. The connection may involve several links (Professor Roya Sheikholeslami v University of Edinburgh [2018] UKEATS/0014/17/JW).
The “something” that leads to the unfavourable treatment must be caused at least in part by the disability. For example:
Mr Charlesworth was made redundant when his employer realised, during a period of disability-related absence, that his role was no longer needed. The EAT ruled that the reason for the unfavourable treatment (dismissal) was not “something arising in connection with his disability” (namely Charlesworth’s disability-related sickness absence). Instead, the reason was the genuine redundancy situation. The sickness absence created the context for the dismissal, but it was not its cause. The claim failed.
Charlesworth v Dransfieids Engineering Services Limited [2017] UKEAT/0197/16/JOJ
The connection between the “something” and the disability must be real, not mistaken. In iForce Limited v Wood [2019] UKEAT 0167/18/0301, there was no breach of section 15, EA 10 when a warehouse packer with osteoarthritis refused to move from a fixed work station to a practice of rotating her work station around the warehouse because of her mistaken belief that this would mean working in colder, damper conditions which would exacerbate her condition. The employer investigated the position and showed her evidence from thermometer readings proving that the temperature throughout the warehouse was the same. When she continued to protest the move, she was given a formal warning for disobeying a lawful order. Her claim for disability discrimination failed.
See also Chapter 8: Dismissal due to long term sickness absence.