For less favourable treatment to be discrimination under the Disability Discrimination Act 1995 (DDA), the disability-related reason must be present in the employer’s mind. If there was more than one reason, it would be enough that the disability-related reason had a significant influence on the employer’s decision. (Probably the same principles would apply to service providers.)
Court of Appeal, 2006. Full judgment: bailii.org.
A profoundly deaf person forwarded three emails from another person’s computer terminal to his own. After two internal hearings he was dismissed.
The employment tribunal said the reason for the dismissal was the misconduct – forwarding emails – and that this reason was not related to his disability. There was therefore no DDA claim for less favourable treatment.
On appeal, the EAT disagreed. It said that even though the dismissal was for misconduct, it could still be for a reason which related to his disability. The decision to dismiss was partly based on his failure to give an adequate explanation because of his inability, on account of his deafness, to explain his conduct.
Held by the Court of Appeal: The employment tribunal was entitled to find that the claimant’s dismissal was not for a reason which related to his disability. Discrimination requires that the employer should have a certain state of mind. In the context of the DDA, an employer cannot discriminate unless he treats the disabled employee differently for a reason (present in his, the employer’s mind) which is related to the employee’s disability.
If there was more than one reason, then if the disability-related reason had a significant influence on the employer’s decision, that would be enough to found the conclusion that the decision was for a reason related to disability.
The employer need not consciously have allowed the reason to affect his thinking. An employer might have an innate prejudice against disabled people. What was important was that the disability-related reason must affect the employer’s mind, whether consciously or subconsciously.
In this case, the claimant’s inability to explain may have contributed to the dismissal as a matter of causation, but there was no evidence that the employer had such a disability-related reason in his mind at the time of dismissal.