Unfavourable treatment? Employee’s poor conduct and short temper were not due to his disability

The Law

Discrimination arising from a disability is covered under section 15(1) of the Equality Act 2010 (EqA 2010). This provides that a person (A) discriminates against a disabled person (B) if (A) treats (B) unfavourably because of something arising in consequence of B’s disability and (A) cannot show that the treatment is a proportionate means of achieving a legitimate aim (the objective justification defence).

Employment Tribunal Decision on unfavourable treatment

The Employment Tribunal had to decide whether the Claimant’s conduct at work arose from a disability. It found that, while the disability could cause the Claimant to behave in the manner described as a “meltdown”, on the occasions when that happened, his behaviour was not a consequence of his disability. The Claimant had behaved as he did because he had a short temper and resented being told what to do.

Employment Appeal Tribunal Decision

The Claimant submitted that the Employment Tribunal had misapplied the broad test of causation that is required when section 15 of the EqA is being considered. It was submitted that the disability does not necessarily need to be the sole or even the main reason for the “something” that arises in consequence of it and the Claimant argued that it only needs to have a significant or more than trivial influence on the “something”.

The appeal was dismissed.

Despite the difficulties in understanding the Employment Tribunal decision, the Judge came to the view that the reasoning of the Employment Tribunal was not flawed by any error of law or principle and it correctly applied section 15 of the EqA 2010. The Judge accepted the Respondent’s submission that once the Employment Tribunal had determined that the disabilities did not have any effect on the Claimant’s conduct on the occasions in question, the further question whether any unfavourable treatment was “because of” that conduct did not arise.

The Judge rejected the submission on behalf of the Claimant that the Employment Tribunal adopted too strict a test of causation when considering the effects of the Claimant’s disabilities. It noted that the correct reading of the decision is that the Employment Tribunal found that those effects did not play any part in the conduct that led to unfavourable treatment complained of, not that those effects paid a significant but less predominant role in causing that conduct. The case was therefore not one where dual or multi factor causation had to be analysed.

The Judge stated that the Employment Tribunal’s decision would have been better if it had been structured in a more systematic way by asking the following questions:

• (i) What are the disabilities?
• (ii) What are their effects?
• (iii) What unfavourable treatment is alleged in time and proved?
• (iv) Was that unfavourable treatment “because of” an effect or effects of the disabilities?

Alternatively, the Employment Tribunal could have reversed the order of the questions. The Judge stated that whichever way an Employment Tribunal decides to approach the issues, it should structure its decision so that a reader can understand clearly what question is being asked and answered at each stage of the analysis.

Comment

This decision shows that, although case law has previously established that there only needs to be a loose connection between the “something arising out of a disability” and the “‘unfavourable treatment” for there to be disability discrimination under section 15 of the EqA, there must still be a connection between the “something” leading to the unfavourable treatment and the disability.

Often, as was the case here, it will depend on the specific facts of the case and relevant medical evidence that has been provided. It can be particularly difficult to establish whether there is any connection where the Claimant suffers from multiple disabilities with varying symptoms due to the difficulty in predicting whether a particular kind of behaviour is something which arises in consequence of one or more of the disabilities.

The case also acts as a useful reminder to employers that when considering what additional support an employee with a disability may require, it may be necessary to seek medical advice. This is to ascertain the extent to which it is impacting on the employee’s behaviour at work and each case will need to be considered carefully on its own facts.