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Bodis v Lindfield

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Last updated 4th June, 2024.

The EAT held that under s.15 EqA, unfavourable treatment can be “because of” something arising from the disability even though the something is only a minor component of the reason for the unfavourable treatment, provided it is “significant” so as to be an “effective cause”. S.15 could apply even though the main reasons for dismissing the claimant in this case were not disability-related. However, the employer had shown justification, so her s.15 claim failed in any event.

[2024] EAT 65. Full decision www.bailii.org/uk/cases/UKEAT/2024/65.html. (Also ET decision appealed against)

Facts

There was a string of incidents at a care home. For example, photos and a Christmas poster for staff were defaced, and CQC reports in the quiet room were repeatedly soaked in water. [§3-13]

N, one of the trustees of the care home, investigated. Evidence – including who was on shift when the incidents happened, and matching handwriting – were thought to point to the claimant. [§14-17]

N held an investigatory meeting with the claimant. The latter was disabled with anxiety and depression, though N did not know this. N accepted that “had he been told that the claimant was suffering from a mental health challenge he would not have taken the fact that her answers were sometimes brief and not to the point, as part of his reasoning as to why it was appropriate to proceed to a disciplinary proceedings.” [§20-22]

At the subsequent disciplinary hearing, the claimant continued to deny that she was the culprit. However, having considered the evidence and all the incidents, the hearing panel found that on the balance of probabilities that she was guilty of disrupting the running of the care home and of harassing the manager and deputy manager (eg the defacement of the poster impliedly criticised the manager). The panel considered that the employment relationship had totally broken down. The claimant was summarily dismissed.

The employment tribunal (ET) held that the employer had failed to make reasonable adjustments. This was not appealed. [§31]

The ET rejected a claim under s.15 EqA (discrimination arising from disability). The manner in which the claimant answered questions was a consequence of her disability. However, the ET rejected the s.15 claim, partly because although the manner in which she answered questions was a factor N took into account when deciding to refer her to a disciplinary hearing, it was a trivial factor rather than a substantial one (below ET decision).

The claimant appealed to the Employment Appeal Tribunal (EAT) on her s.15 claim, and on the ET’s rejection of her unfair dismissal claim which I don’t deal with.

Held by EAT: The ET had applied the wrong test on causation under s.15 EqA. In any event though, her s.15 claim could not succeed because she had not appealed the ET’s decision that the employer’s actions were justified.

ET decision

(Discrimination arising from disability under s.15 EqA is where the employer treats a disabled job applicant or worker unfavourably “because of something arising in consequence of” the disability, and the employer cannot show that the unfavourable treatment is a proportionate means of achieving a legitimate aim (justification). The employer also has a defence if it did not have actual or constructive knowledge of the disability.)

The unfavourable treatment claimed here was (a) subjecting the claimant to a disciplinary process, and (b) dismissing her. [ET §20, §39, §346]

The ET found that the employer had knowledge of the claimant’s disability [ET §361-363, §39, §57-73]

Another issue was whether N’s decision to refer the claimant to a disciplinary hearing was “because of” the manner in which she answered questions (the “something”) in the investigation meeting, which arose from her disability. [ET §348]

In the conclusion section to N’s report, he concentrated upon handwriting and opportunity, coupled also with the fact the claimant was seen acting suspiciously in the vicinity where her photo was vandalised. In his observation section, however, he also “recorded the claimant answered questions very briefly was somewhat evasively” (sic). [ET §349]

The ET concluded therefore that “the claimant’s demeanour was a factor that [N] took into account in determining to refer the matter to a disciplinary hearing but it was not a substantial matter. It was trivial. It was not the effective cause. The other factors were the most important.” [ET §350]

Turning to the disciplinary hearing itself, the ET “was satisfied that the manner in which the claimant answered questions at the investigative meeting did not play any significant part in the decision to dismiss, or put differently, its influence was less than trivial on the decision makers.” [ET §351-352]

The ET therefore concluded that the unfavourable treatment was not “because of” her demeanour which arose from her disability. It also held that, in any event, subjecting her to a disciplinary process was justified, ie a proportionate means of achieving a legitimate aim. [ET §364-367]

EAT decision

Previous case law

The EAT said the causation required to establish discrimination was considered by the House of Lords in Nagarajan v London Regional Transport (bailii.org), 2000, in which Lord Nicholls famously said:

Decisions are frequently reached for more than one reason. Discrimination may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out. Read in context, that was the industrial tribunal’s finding in the present case. The tribunal found that the interviewers were “consciously or subconsciously influenced by the fact that the applicant had previously brought tribunal proceedings against L.R.T.

Setting out the approach to be adopted in a s.15 EqA claim, as regards “because of”, the EAT in Pnaiser v NHS England (bailii.org), 2015, had said:

The Tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A [ie the person alleged to have treated B unfavourably]. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so to, there may be more than one reason in a section 15 case. The “something” that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial influence on the unfavourable treatment), and so amount to an effective reason for or cause of it.

EAT discussion in this case

The claimant argued that the ET had erred in law in its approach to “causative triviality” under s.15 EqA. [§34]

The EAT pointed out that the statutory test in s.15 is whether the unfavourable treatment was because of something arising in consequence of disability. There is no statutory concept of “causal triviality”, it said, nor is that concept helpful in analysing the statutory provisions [§44]. Introducing a concept of causal triviality would ignore the injunction of Lord Nicholls (above) to avoid subtle distinctions so far as possible. The key question, said the EAT, is “whether the unfavourable treatment is because of the something arising in consequence of disability, which the authorities clearly establish does not require that the treatment be solely or principally because of the something, but only that the something is of sufficient causal significance that the unfavourable treatment can be said to be because of it”. Not much of assistance could be added to Lord Nicholls’ analysis.

The EAT in Pnaiser had relied on Lord Nicholls’ analysis when it said the “something” that causes the unfavourable treatment “need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it”. The EAT there was restating the long-established principle that causation requires a significant influence so as to amount to an effective cause. The “more than trivial” in brackets was used to ensure that too high a standard was not applied to the word “significant”. [§45]

However, the EAT in the present case considered that great care should be taken before concluding that something that was consciously taken into account by a decision-maker was only taken into account to a trivial extent, so that liability was not established [§46]. Something can be a minor component of the reason for the treatment provided it is “significant” so as to be an “effective cause” [§47]. The unattractive nature of finding that something was consciously taken into account but only to a trivial extent was emphasised by taking the example of a decision-maker who accepts that he took some account of a protected characteristic such as race or disability in deciding to dismiss, but only to a trivial extent [§48].

Applying this to the present case

The ET here had treated the word “trivial” as meaning “minor” – as describing a reason that was of minor significance rather than the primary reason. The ET had found as a fact that N took account of “the fact that her answers were sometimes brief and not to the point” as part of his reason for proceeding to a disciplinary hearing. The ET referred to the claimant’s demeanour not being “the” effective cause, whereas it need only have been “an” effective cause. The EAT said: “To the limited extent, if any, to which the word trivial assists, it is because it refers to something that is causally irrelevant.” [§49]

Therefore, the ET erred in holding that the decision to refer the claimant to a disciplinary hearing was not because of her demeanour in the investigatory interview. On the ET’s own findings of fact, it was a contributing factor in the decision, albeit a minor one. [§50]

As regards the panel’s decision to dismiss (the other “unfavourable treatment” claimed), the ET’s conclusion that the disciplinary panel took no account of the claimant’s demeanour at the investigatory meeting may have been founded on a misconception of the word trivial as used in Pnaiser [§51].

However, the ET’s finding that the unfavourable treatment was in any event justified (which the claimant had not appealed) was fatal to her s.15 claim [§50-55].

My comment

Subject to two defences, there is discrimination contrary to s.15 EqA if the employer treats a disabled job applicant or worker unfavourably “because of something arising in consequence of” the disability. That includes two causal tests (see Discrimination arising from disability (s.15 Equality Act)>”Because of something arising in consequence of” the disability). The one the EAT was dealing with here was the words “because of”. As regards the other causal test, it was accepted (at least in the EAT) that the way the claimant answered questions in the investigatory meeting was “in consequence of” her disability.

The EAT here said that something (arising from the disability) can be a minor component of the reason for the unfavourable treatment, provided it is “significant” so as to be an “effective cause” of the unfavourable treatment. Under s.15 something need not be one of the main reasons for the unfavourable treatment to have a “significant” influence on it.

The House of Lords in Nagarajan and many other cases have used the word “significant”, and one can understand why a tribunal might see “trivial” as the opposite of that (particularly in the light of Pnaiser). However, the EAT here emphasises that the disability-related reason may only be a minor one. The main reason for the unfavourable treatment in this case was the various evidence against the claimant which the employer had gathered.

The EAT does not see it as useful to consider whether the reason (arising from disability) for the unfavourable treatment was only “trivial”, but says little about when a reason might not be “significant” so as to be an “effective cause” of the unfavourable treatment – or in other words when it might not be “of sufficient causal significance that the unfavourable treatment can be said to be because of it”.

I discuss “because of” in s.15 where there are multiple reasons at Discrimination arising from disability (s.15 Equality Act)>”Because of…”: Need not be the only reason for the unfavourable treatment.

The EAT discusses a case (Nagarajan) and a hypothetical example on direct discrimination because there too, as in s.15, the words “because of” are used and are seen as having the same meaning. However the causal link with the disability under s.15 can be much looser, because for s.15 the unfavourable treatment need not be because of the disability itself but can be because of something arising in consequence of the disability: Discrimination arising from disability (s.15 Equality Act)>”Because of…”: difference from direct discrimination.

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