The claimant’s disabilities made it difficult for him to get a PhD. The university required candidates for promotion to be on a pathway to a PhD or equivalent. It also required there to be a business case for the role. The claimant’s disability discrimination claims failed, because there was no business need in the relevant years, so that even without the PhD requirement he would not have been promoted.
Court of Appeal, [2024] EWCA Civ 191. Full decision: www.bailii.org/ew/cases/EWCA/Civ/2024/191.html
Facts
The claimant was a lecturer in journalism at the university, and wanted promotion. The university had introduced a policy of increasing the number of academic staff with doctorates. Its “Framework” for progression was based on (a) whether the applicant had met required standards, and (b) whether there was a business need (and a budget) for the role. Both were required.
One requirement under (a) was, according to the terms of the Framework, that the applicant have a PhD (or, exceptionally, showed an equivalent “contribution to professional practice”). The ET found that the university interpreted the requirement to have a PhD flexibly, so that being on “a pathway to” a PhD was enough. Also flexibility was applied to the type of PhD, and there were various alternative routes to a traditional PhD route that the university was prepared to consider, such as the enterprise route. I call this the “PhD requirement”.
The claimant had ADHD and a sleep disorder, which made it difficult for him to get a PhD, or at least a “traditional” one.
In the years when the claimant applied for or requested a promotion, there was no business need for the role.
The employment tribunal (ET) said the claimant had failed to engage with the university in looking at ways he might meet the PhD requirement. (Note: However, this was not relevant to the elements of the decision I discuss below.)
Held: His disability discrimination claims under the Equality Act 2010 (EqA) failed, because he had not been treated unfavourably or put at a disadvantage in relation to his disability. Regardless of the PhD requirement, he would not have been promoted as there was no business need.
Reasonable adjustments (EAT)
His claim for reasonable adjustments did not get to the Court of Appeal. The Employment Appeal Tribunal (EAT) (bailii.org) dismissed his claim on this, as the PhD requirement did not put him at a substantial disadvantage. Any disadvantage he might have suffered as a result of the PhD requirement was simply irrelevant, as there was no business need for the role he was seeking. The position would therefore have been no different if he did not have the relevant disability. [EAT §132-133]
Causation under under s.15 (CofA)
Similarly, as to his claim under s.15 EqA (discrimination arising from disability), the Court of Appeal held that he had not been treated unfavourably “because of” something arising from his disability. The court said:
83. … The lack of a business case was a show-stopper. An able-bodied person who applied for promotion to grade 7 from the Faculty in 2017 and 2018, and an able-bodied person who applied from anywhere in the University in 2019, would have encountered exactly the same road-block, and would not have been promoted to grade 7. That meant that there was no room at all, as the ET found, for anything arising from Mr Pipe’s disability to play a causal role of any kind. …
No disadvantage under s.19 (CofA)
For the same reason, the Court of Appeal held the PhD requirement did not put the claimant (and others with the same disability) at a “particular disadvantage”, so he could not claim indirect discrimination under s.19 EqA.
On the facts of this case, said the Court of Appeal, there was no difference of substance between the tests in s.15 (above) and s.19. It followed that the application of the two tests should lead to the same result. The court continued: “More fundamentally, however, the causal potency of the lack of a business case made the other requirements of the Framework causally irrelevant, so whatever causation test the ET had applied, that part of the claim would have failed.” [§85]
Justification
The Court of Appeal also rejected grounds of appeal relating to justification under ss.15 and 19 [§3, 87-91]. I focus below on whether under s.15 EqA it was the university’s policy, ie the Framework, or its application to the particular claimant that had to be justified.
Note: Normally under s.15 EqA it is the particular unfavourable treatment of the claimant that has to be justified, rather than a general rule of policy: see Justification under s.15: Is it sometimes the general practice that must be justified?
Justification: EAT decision
This section relates to the Employment Appeal Tribunal (EAT) decision: EAT decision in Pipe (pdf, bailii.org).
The EAT in Buchanan v Commissioner of Police for the Metropolis had acknowledged that there will be cases in which the question whether the treatment of the claimant was justified will depend on whether the relevant rule or policy is justified. That case cited the Seldon Supreme Court decision on age discrimination, where Lady Hale contrasted the adoption of a general rule with a series of responses to particular individual circumstances. The EAT in Buchanan said that the case before it was one where the particular treatment of the claimant rather than the general rule (an attendance management policy) had to be justified, as the policy allowed for a series of responses to individual circumstances.
Citing Buchanan, the claimant in Pipe argued to the EAT that the ET was mistaken in seeing the question as whether the Framework as a policy was justified. The question should have been whether its application in the individual case was justified. The claimant argued that the flexibility which the ET had found existed in the Framework meant that the Framework allowed for a series of responses to individual circumstances (EAT §88, §170-172).
The EAT said it was not clear that this point had been disputed before the ET. It seemed to have been common ground before the ET that the relevant question was whether the general rule or policy was justified, not its application in the individual case. (EAT §173)
In any event, said the EAT, the claimant’s argument was a mischaracterisation of the ET’s finding as to flexibility. The ET had rejected the claimant’s contention that the Framework required an applicant to attain a PhD, finding that the university interpreted the Framework to mean the applicant could be on a pathway to obtaining a PhD. The university also accepted various alternative routes, and exceptionally equivalence in contribution to professional practice.
The EAT said it was hard to see the Framework as akin to an attendance management policy, as in Buchanan. But in any event, the ET’s findings as to the flexibility allowed under the Framework would still not have permitted “a series of responses to individual circumstances”. An applicant for promotion would have to meet the terms of the Framework, albeit these did not require the applicant to attain a PhD. (EAT §172-173)
The ET was therefore right to ask whether the Framework itself was justified.
Justification: Court of Appeal decision
Justification under s.15 did not matter given the Court of Appeal’s decision on causation (above), ie the unfavourable treatment was not “because of” something arising from the claimant’s disability. However, the court considered justification anyway.
The claimant argued to the Court of Appeal that the courts below had erred in their assessment of proportionality under s.15 by failing to consider the impact of the unfavourable treatment on the claimant. The ET had not taken into account many individual effects on the claimant in each of the relevant years. Even in a case in which the policy had to be justified, he argued, the individual effect also had to be considered as part of that assessment. (§3, §75)
The Court of Appeal (§54-55) said the ET recorded that the parties agreed that if A’s treatment of B is a direct result of applying a general rule or policy to B, whether that treatment is justified will usually depend on whether the general rule or policy is justified, based on Buchanan. The employment tribunal (gov.uk) at §268-270 of its decision held that the Framework was justified, and that any unfavourable treatment was therefore justified under s.15.
Had the ET taken the correct approach here? The Court of Appeal said at §89 that the ET found there was no breach of the duty to make reasonable adjustments. This conclusion of the ET was based on an intense focus on the claimant’s circumstances and arguments. Evidently and consciously, the ET built its reasons about the other claims on the foundation of its reasoning about the reasonable adjustments claim. If the ET had found there was a failure to make reasonable adjustments, said the Court of Appeal, this would have tended to suggest that the university was not justified in rejecting his applications for promotion.
The first sentence of para §90 of the Court of Appeal decision is probably intended to say (like in §54) that it was agreed before the ET, on the basis of Buchanan, that in some cases, where the reason for treatment is a provision, criterion or practice (PCP), whether unfavourable treatment satisfies the proportionality test under s.15 will depend on whether the PCP is proportionate. (But, with respect, it doesn’t say that. It is combined with a statement on s.19 EqA, and says at the end “will depend on whether the treatment or PCP is proportionate…”, emphasis added by me.)
The Court of Appeal continued in para §90: “That is a relevant legal principle. It was applied by the ET in this case. I can see no basis for a suggestion that, in some way, the ET misunderstood or misapplied that principle to these facts. If the ET, as I consider it was, was entitled to apply that legal principle in this case, that leaves no room for any argument that the ET erred in law in not expressly factoring the effect on [the claimant] into its consideration of proportionality/justification. The whole point of Baroness Hale’s reasoning [in Seldon] is that the proportionality of the PCP may be treated as a legitimate proxy for the application of the proportionality test to an individual case.”
My comment
Comment: Causation
There are Employment Appeal Tribunal (EAT) decisions – not considered in Pipe – which seem to say that a reason arising from the disability can have a significant influence (so that s.15 applies) even if the unfavourable treatment would have happened without it. Pipe may just be saying, for example, that one can’t claim discrimination for not being appointed to a job which doesn’t exist, which would be consistent with those EAT decisions. Or Pipe may have wider application. For discussion, see Discrimination arising from disability>If unfavourable treatment would have happened even without the something arising from the disability?
Comment: Justification
On the difficult issue of justification in this case, see Justification under s.15: Is it sometimes the general practice that must be justified?>Comment on Pipe.
