Court of Appeal, May 2011
The Court of Appeal was asked to consider interesting questions of how far treatment due to a “necessary facet” of a disability is direct discrimination, and whether the DDA 1995 covered discrimination on grounds of ‘perceived’ disability. The Court of Appeal refused to consider the issues as they did not arise on the basis of the facts found by and arguments put to the Employment Tribunal.
Full Court of Appeal decision: www.bailii.org/ew/cases/EWCA/Civ/2011/582.html
A police officer with obsessive compulsive disorder sometimes behaved agressively, though he may not have been dangerous. The police force decided to retire him on medical grounds. The Employment Tribunal (ET) rejected a claim for disability discrimination.
Court of Appeal decision
Held by the Court of Appeal: the employee’s appeal failed, there had been no breach of the DDA:
Direct discrimination: Reason for treatment
The ET had found that the reason for the employer’s treatment of the claimant was not his disability, but the effects of his conduct on others and the fact that it was frightening. It was not till the appeal reached the Employment Appeal Tribunal that the claimant sought to argue the treatment was “on the ground of” his disability, as his conduct was “a necessary facet” of his disability, that it was so much part and parcel of the disability that it could not be separated from it.
The Court of Appeal said it was not open to the claimant to raise this point for the first time in the course of an appeal limited to questions of law. If the point had been raised in the ET, evidence would have been admissible about the relationship between his disability and his behaviour. No useful purpose was served now by a theoretical discussion on a legal point on which there was no evidence and therefore no relevant findings of fact.
Direct discrimination: Whether “necessary facet” of disability to be stripped out in making comparison
This is related to the previous point. The employee argued that in deciding whether he had been treated less favourably, the comparison should be with how a person would be treated who did not exhibit the bad behaviour. The behaviour was a “necessary facet” of the disability. He contended that to strip out ‘disability’, actual or perceived, but include the substance of the signs and behaviour on both sides of the comparison was illegitimate.
The Employment Appeal Tribunal disagreed. It said the ET was entitled to include bad behaviour as a relevant circumstance in making the comparison between how the employee was treated and how a non-disabled comparator was treated. The question would therefore be whether he was treated less favourably than a non-disabled person who behaved in the same way. (He was not.) In the same way, the House of Lords in the Malcolm case had treated imprudent decision-making (a decision to sub-let in breach of tenancy terms) as not being the disability, even assuming the decision was causally connected with the disability.
The Court of Appeal said the claimant’s conduct was not alleged or proved in the ET either to be, or to be part and parcel of, his disability. So the Court of Appeal did not have a factual foundation on which to consider an appeal.
The Court of Appeal considered this case was distinguishable from Aylott. In Aylott, on the facts found: the behaviour of the claimant, who suffered from bipolar affective disorder, had never in fact been threatening to his colleagues; his treatment by the respondent council was the result of stereotypical views of mental illness; and the council’s treatment of him knowing of his disability provoked the behaviour which was then subject to a disciplinary investigation by the council. In those circumstances (ie. those of the Aylott case) there was no error of law in the ET’s exclusion from the characteristics of the hypothetical comparator of particular behavioural results caused by the claimant’s disability.
The employee argued that there was direct discrimination on grounds of him being perceived to have a dangerous mental illness. He said such discrimination on grounds of ‘perceived’ rather than actually disability was unlawful in the light of the European Court’s decision the Coleman. (For more on this argument see Perceived disability).
The Court of Appeal said the submission had no factual foundation in this case. It was unnecessary to attempt an answer to such questions as to whether a person has to have an actual disability in order to succeed in a claim for disability discrimination, whether direct or disability-related and whether less favourable treatment on the ground of a wrongly perceived or imagined disability is unlawful discrimination contrary to the DDA. On the facts found by the ET, this was not a case like Aylott where the employer acted on the basis of stereotypical assumptions about mental disability. The ET in the present case found that the employer acted on the basis of how the claimant appeared to others. That finding of fact was fatal to the contention that this is a case in which the claimant was treated less favourably in circumstances in which it was mistakenly believed as a result of his behaviour that he was suffering from a disability.
The employee claimed that various reasonable adjustments should have been made: for example that the employer should have established whether he was a risk so as to ensure staff acted on the basis of knowledge rather than ignorance, assumptions or fear; to remove requirements for him to be accompanied in all circumstances and not to work with women.
The Court of Appeal was satisfied that no question of law arose from the ET’s decision that there was no obligation to make these adjustments. It was important to bear in mind the ET’s finding of fact that the claimant’s behaviour appeared to be frightening, and that the question of what would be a reasonable adjustment is a matter of fact and degree.
The Court of Appeal regretted giving leave to appeal. It basically considered that on the arguments made to and facts found by the Employment Tribunal, the interesting legal questions argued before the Court of Appeal did not arise for decision in this particular case. So the Court did not consider them.
Stripping out a “necessary facet” of the disability
The Court of Appeal evidently considered there was an interesting question as to whether this should be done, but refused to consider the point in this case. For discussion of this with regard to stammering, see Direct discrimination: What is ‘because of’ stammering?.
Perceptions of others
The Court of Appeal refused to consider in this case whether perceived (rather than just actual) disability is covered by the DDA. For perceived disability and possible relevance for stammering, see Perceived Disability.
That is a relatively narrow point though, mainly whether there can be discrimination when a person does not actually have a disability but is perceived to have one. The case raises wider issues of how far perceptions of colleagues and customers are relevant in justifying less favourable treatment of disabled people. For example, it seems surprising to me that it was accepted with so little debate that the treatment of the claimant due to his effect on the feelings of others (he said their fears were groundless) was so readily accepted as not due to his disability, and so was not direct discrimination. One cannot imagine a court reaching such a conclusion in a race discrimination case. The courts seem to have further to go in drawing the boundaries here. See further Direct discrimination: What is ‘because of’ stammering?