The EAT held that in deciding whether there is a breach of s.15 EqA (discrimination arising from disability), the dismissal itself is separate from any later internal appeal decision on it. The tribunal claim in this particular case only covered the original dismissal, at which time the employer had no knowledge of the disability. So the claim failed. Claimants should ensure their s.15 claim includes not only the dismissal but also subsequent appeal decisions etc by the employer.
2021, Employment Appeal Tribunal. Full decision www.bailii.org/uk/cases/UKEAT/2021/2019-000772.html
The claimant was dismissed for poor performance. At the time of the dismissal itself the employer did not know of her disability and could not reasonably have been expected to know of it (ie the employer did not have actual or constructive knowledge).
She raised a grievance about the dismissal, telling the employer of her disability. The grievance was unsuccessful, as was her internal appeal against the grievance outcome.
Among other things she claimed disability discrimination under s.15 EqA, saying the poor performance was due to her disability.
Held by the EAT: her s.15 claim was unsuccessful because:
- at the time of dismissal the employer did not have actual or constructive knowledge of her disability, and
- her s.15 claim to the tribunal did not include the employer’s decision in the grievance appeal, by which time the employer had the requisite knowledge of the disability.
Note: Claimants should be able to avoid this problem by ensuring their claim expressly covers not just the original dismissal but also the employer’s decision(s) in any subsequent grievance and/or appeal. Below My comments.
The claimant’s argument was that the poor performance which was the reason for her dismissal resulted from her disability, namely anxiety and depression. She said her dismissal was therefore unfavourable treatment because of something (poor performance) arising in consequence of her disability, and so unlawful under s.15 EqA (discrimination arising from disability) unless the employer showed justification. The employer argued that s.15 did not apply because the employer did not have actual or constructive knowledge of her disability at the time of dismissal.
The Employment Appeal Tribunal (EAT) said the court in CLFIS (UK) v Reynolds, 2015, had held that whether the employer’s decision to dismiss was discriminatory is a different question from whether its decision in an internal appeal was discriminatory. CLFIS was a case on direct discrimination (s.13), where the motivation of the individual decision-maker is important. The EAT pointed out that the motivation of the decision-maker is also important on a s.15 claim, when deciding what – in the decision-maker’s head – was the reason for the dismissal or other unfavourable treatment. (The reason/motivation here was her poor performance.) Accordingly, like with direct discrimination, whether the original dismissal breached s.15 was a distinct question from whether a subsequent grievance decision or appeal decision breached s.15. The different decisions may have been taken by different individual decision-makers, and/or for different reasons.
By the time of her grievance appeal, the employer in this case had at least constructive knowledge of her disability (ie it could reasonably be expected to know of the disability). However the EAT held that on the particular facts the claimant had claimed to the tribunal that the dismissal itself was a breach of s.15, not the subsequent grievance decision. The EAT distinguished Baldeh v Churches Housing Association, 2019, where the EAT had seen the tribunal claim as including the outcome of an internal appeal. Since the employer in the present case did not have actual or constructive knowledge of her disability at the time of the dismissal itself, her s.15 claim failed.
The EAT said the position is different from unfair dismissal claims where it is long‑established that “dismissal is regarded as a process encompassing the appeal stage and outcome”.
Difference in justification test for s.15 compared with indirect discrimination (s.19)
The EAT decision is also interesting in setting out clearly that there is a difference between justifying unfavourable treatment of a particular disabled person under s.15 EqA, compared with justifying a (general) provision criterion or practice (PCP) under s.19 EqA (indirect discrimination) where group disadvantage may feed into the test.
“81. Whilst much of the section 19 defence jurisprudence readily maps across to the section 15 defence, it is important not to lose sight of the fact that what the employer is seeking to justify in each case is a different type of thing. A complaint under section 15 does not involve the application of a provision, criterion or practice giving rise to group disadvantage; and passages in the authorities on section 19 which focus on how the aspect of group disadvantage feeds into the justification test, such as the passage cited to me from Barry v Midland Bank, are therefore not of direct assistance in considering the defence in a section 15 case. [The employer’s lawyer] submitted that the law was, as it were, there to protect all people with the given disability. As to that, of course it must be kept in mind by the tribunal that what the employer is seeking to justify in a section 15 case is conduct that is because of something arising from disability. Nevertheless, group impact is not a consideration in this context.”
The EAT basically held that the initial dismissal and any subsequent internal appeal or grievance decision are separate acts for the purposes of s.15 EqA (discrimination arising from disability). Whether each decision/act is unlawful under s.15 is a distinct question. One decision may breach s.15, and another may not.
The most important thing for a claimant is to ensure their claim expressly covers each relevant decision/act of the employer, rather than just the initial dismissal. A tribunal may as in Baldeh see a subsequent internal appeal decision as within a claim for the “dismissal”, but that depends and is by no means guaranteed. It seems wise for a claimant to plead the different decisions/acts by the employer as different acts of discrimination contrary to s.15, for example the dismissal and any appeal outcome.
That is not only relevant if the employer did not know of the disability at the time of the original dismissal decision. There may be other reasons why a tribunal assesses the lawfulness of the original decision differently from a later one.
The same is likely to apply to other types of unfavourable treatment where there is a subsequent internal grievance/appeal decision. On the logic of Stott, it would seem wise to explicitly include the subsequent decision(s) in any s.15 claim.
Where the worker argues the dismissal was for a disability-related reason and lodges an internal appeal, clearly it is also sensible to ensure the decision-maker in the appeal has clear knowledge of the disability and is invited to take it into account. However knowledge of the disability by that decision-maker is not necessarily required in law to bring a s.15 claim; the Code of Practice says any employee or agent knowing (in that capacity) of the disability will normally be enough.
This principle of considering different decisions separately also applies to claims under s.13 EqA (direct discrimination). For s.13 though the decision-maker’s motivation would need to be the disability itself, rather than a reason (in this case poor performance) arising in consequence of the disability. So unlike for s.15, the individual decision-maker would probably need to know of the disability.