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26 May 2016

Two cases on the “loose” causal connection to establish discrimination arising from disability - Ensure you have a defence

There have been two recent decisions from the EAT on the test to establish a claim of discrimination arising from a disability.  It appears that the link between the unfavourable treatment and the disability only needs to be very tenuous to get this type of claim off the ground.  This makes it very easy for employees to bring claims.

In T-Systems v Lewis Ms Lewis, who had type 1 diabetes, had been signed off on sick leave with stress following a hypoglycaemic episode at work. The company wanted to make changes to its shift patterns. It notified her and asked for her consent to get a medical report to see whether the new shifts would pose any risks to her health. At a consultation meeting she said she wanted to work the new pattern unless this wasn’t supported by the medical report in which case she would take voluntary redundancy. However, instead of waiting for the report the employer went ahead and dismissed her as it considered she was impeding the process by not making up her mind about what she wanted to do.

The EAT held that the unfavourable treatment was the dismissal and then looked at whether this was due to “something arising in consequence of the disability”. Here the inability to decide whether to accept the new shift pattern, without having seen the medical report, was “something arising in consequence of her disability”. Therefore the tribunal had correctly found her indecision was the reason for the dismissal and her claim was upheld.

In Risby v London Borough of Waltham Forest, Mr Risby, a paraplegic, lost his temper when the venue for some workshops organised by the Council was changed to a place which had no wheelchair access. He shouted at a junior colleague, Ms Scott, using extremely offensive and racist language. He was unaware that she was of mixed race and Ms Scott thought his comments were being directed at her. He subsequently made similar offensive comments to another work colleague. He was suspended and, following a disciplinary hearing was summarily dismissed. He appealed, but the decision to dismiss was upheld on the basis that this behaviour could not be tolerated as it was contrary to the Council’s equal opportunities policy and because of the direct effect on Ms Scott. He claimed unfair dismissal and discrimination arising from disability.

A tribunal dismissed his claims as it found his short temper was a personality trait which was unrelated to his disability. However, the EAT allowed his appeal on the basis that the loose causation test meant that all that had to be established was that his conduct arose in consequence of his disability. If he had not been disabled he would not have been upset by the change in venue. The case was remitted back to the tribunal. The employer will need to defend the claim on the basis that dismissal rather than giving him a final written warning was a proportionate means of achieving the legitimate aim of upholding its equal opportunities policy and in view of the upset to Ms Scott. The question of the reasonableness of the decision to dismiss in respect of the unfair dismissal claim will also need to be reconsidered.

Our practical points
  • These cases mean it is very easy for a claimant to establish there is some link, however tenuous, to their conduct resulting in the unfavourable treatment and their disability and even if it is not directly related or not the only cause.
  • However, employers do have a defence. If disciplining or taking other action in respect of a disabled employee, employers should be very careful to ensure this can be justified as a proportionate means of achieving a legitimate aim.

This article was written by Emma Bartlett.