An employment tribunal held that various failures by the employer, including delay in dealing with a grievance on disability, were unlawful ‘discrimination arising from disability’ (s.15 EqA). The Court of Appeal overturned the decision. The tribunal normally had to consider the employer’s thought processes in deciding whether the employer’s reason for the delay (or other unfavourable treatment) was something arising from disability. The tribunal had not considered the employer’s thought processes, and there was nothing to suggest that was the reason. The delay in dealing with the grievance was deplorable but not discriminatory.
Court of Appeal, July 2020. Full judgment www.bailii.org/ew/cases/EWCA/Civ/2020/859.html
In November 2014 the claimant developed blurred vision in her left eye, meaning she could not work on a computer using the Debt Manager software her job required.
Attempts to solve this with screen magnification software led to a number of technical difficulties and lasted a long time. However it was eventually decided there was no feasible solution. Debt Manager required her to see the whole of the contents of a screen, but with magnification she could only see part of the screen at any time. Also moving between screens might increase her risk of migraine.
While the employers were trying to make a solution work, the claimant worked under considerable stress because of these difficulties. She had some leave of absence. In March 2016 she agreed to work in a paper-based role at the same pay grade, although at that stage both parties hoped this would be temporary whilst the difficulties were resolved.
She brought a claim for failure to make reasonable adjustments, and for discrimination arising from disability under s.15 EqA. The employment tribunal rejected her claim for failure to make reasonable adjustments and to provide a suitable work station, given that ZoomText and other magnification software had proved unsuitable. However the employment tribunal held that the following (and one other thing which I don’t discuss) were unlawful discrimination arising from disability contrary to s.15 EqA:
- failure to deal with her second grievance and an appeal on it in a timely manner;
- failure to implement the reasonable adjustments recommended by occupational health and the reasonable adjustments team;
- failure to protect her from stress causing a detrimental effect to her health. (DWP had itself concluded in response to a grievance brought by her that DWP had failed in its duty of care to protect her from undue stress.)
In broad terms ‘discrimination arising from disability’ under s.15 EqA can apply if the employer treats a disabled person unfavourably “because of something arising in consequence of” their disability. There are defences relating to whether the employer knew of the disability, or if the employer shows its actions were justified.
Held by the Court of Appeal: these s.15 claims failed because the employment tribunal had not engaged with the employer’s thought processes. Therefore it had not found that the failures were because of something arising from disability.
Importance of employer’s thought processes/ motivation
The Court of Appeal said it agreed with the provisional view expressed in another Court of Appeal case Dunn v Secretary of State for Work and Pensions>Mishandling of early retirement application. The claimant in Dunn was arguing he had a s.15 claim because he had applied for ill-health retirement “in consequence of his disability” and this necessarily involved him in “unfavourable treatment”, because of the inherent inadequacies of the arcane and unwieldy system for handling such applications. The court in Dunn gave as its provisional view – and the court in Robinson agreed – that it is not enough that the claimant would not be the victim of delay and incompetence if they were not disabled. Also mishandling of a grievance is not discriminatory just because the grievance concerns discrimination.
The court held that “because of” in s.15 (discrimination arising from disability) means the same as in s.13 (direct discrimination). As with s.13, the tribunal considering a s.15 claim must normally consider the thought processes of the employer, conscious or unconscious. The courts often call this the “motivation” of the employer. The Court of Appeal in Robinson agreed with an observation in Dunn that:
“‘just as with direct discrimination, save in the most obvious case, an examination of the conscious and/or unconscious thought processes of the putative discriminator is likely to be necessary’ if a s 15 claim is to succeed.”
However there is an important difference between direct discrimination and s.15:
- for a direct discrimination claim the tribunal will be looking at the thought processes to decide whether the employer’s reason was disability, but
- in a claim under s.15 the tribunal will be looking at the thought processes to decide whether the employer’s reason was something arising in consequence of the disability, eg perhaps an absence from work resulting from disability. (However see below Comments>Court of Appeal “misspeaking”? on this point.)
There are some exceptional cases where it may not be necessary to look at thought processes: see Discrimination arising from disability>Inherent discrimination.
Applying this to the Robinson case
In the light of the test above, the Court of Appeal overturned the employment tribunal’s finding that various detriments were unlawful discrimination under s.15:
- Failure to deal with the claimant’s grievances in a timely manner. The court said there was no finding of fact which could establish, even on a prima facie basis, that managers delayed the resolution of the grievance because of the claimant’s disability or the symptoms arising from it. The employment tribunal did not engage with their thought processes, as discussed above. The delay in dealing properly with the claimant’s problems was deplorable, but not discriminatory.
- Failure to implement the reasonable adjustments recommended by occupational health and the reasonable adjustments team. Firstly, again the tribunal did not engage with the thought processes of the relevant managers. Secondly, to uphold a claim under s.15 based on failure to implement the reasonable adjustments recommended within a reasonable time was incompatible with the tribunal’s rejection of the reasonable adjustment claim.
- Failure to protect the claimant from stress causing a detrimental effect to her health. The employment tribunal had said “it is clear that the root cause of the Claimant’s problems was her disability and arose out of the consequences of that disability, namely the Claimant’s inability to use the normal computer software and hardware provided by the [employer].” However again, this did not engage with the relevant manager’s thought processes. Also it was incompatible with the tribunal’s rejection of her reasonable adjustments claim.
Court of Appeal “misspeaking”?
The position I describe above is what was set out by the Court of Appeal in Dunn, with which the court in Robinson said it agreed. However the court in Robinson says at one point:
…But both sections [13 and 15] require the [Employment Tribunal] to ascertain whether the treatment (whether less favourable or unfavourable) was because of the protected characteristic and, as such, require a tribunal to look at the thought processes of the decision-maker(s) concerned.
As regards s.15, the question is not whether the treatment was because of the protected characteristic, ie disability, but whether it was because of something arising in consequence of disability, which is much wider. “Because of the protected characteristic” is the test for direct discrimination, which is much more limited than s.15.
However the Court of Appeal in Robinson was evidently not intending to alter the law as clearly set out in other Court of Appeal decisions on s.15, both Dunn v Secretary of State for Justice which it said it agrees with, and City of York Council v Grosset (see “S.15 restores the balance after Malcolm“), a “landmark” decision (per Arden LJ) where the Court of Appeal said the Equality Act 2010 was intended to restore protection for disabled people beyond the more limited view which existed prior to that Act as a result of the Malcolm decision. The Malcolm decision had more or less abolished “disability-related discrimination” under the DDA (which had been the equivalent of s.15) by equating it with direct discrimination. It seems unlikely that what the court said in Robinson will lead to any dilution of the established position under s.15.
Interaction with Grosset case
This case is consistent with the Court of Appeal’s decision in Grosset that the employer etc does not need to know of the causal link between the disability and the reason for the unfavourable treatment, ie the “something” arising in consequence of the disability: Knowledge of causal link with disability under s.15 EqA.
In Grosset the employer knew the claimant had shown an 18-rated film to vulnerable children. Looking at the employer’s thought processes, showing the film to them was the “something” because of which he was dismissed. The employer did not know that this “something” arose in consequence of his disability, but was still liable under s.15.
S.15 more generally
Discrimination arising from disability (s.15) has other important elements which are largely not discussed above. For example the employer has a defence if it can show justification.