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Pipe v Coventry University

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Last updated 6th July, 2024.

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, broadly, that the applicant be on a pathway to a PhD or equivalent. (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, including arguments by the claimant that (on s.15) the lower courts elided the legitimacy of the aims of the Framework with the question of proportionality, and failed to consider the impact of the unfavourable treatment on the claimant. [§3, 87-91]

My comment

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?

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