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In focus: Discrimination “arising from” a disability

One of the main concerns raised by businesses when a dispute arises with a disabled employee is the prospect of facing a claim of discrimination. Such disputes can be costly for businesses, especially when the dispute leads to an employment tribunal claim.

Protection against discrimination is provided for under the Equality Act 2010. Such characteristics are collectively referred to as the ‘protected characteristics’. Disability is one of the nine protected characteristics and is defined under section 6(1) of the Equality Act as being a person who has a physical or mental impairment which has a substantial and long-term adverse effect on his/her ability to carry out normal day-to-day activities.

We are all familiar with the common direct and indirect discrimination claims, however lately we have seen an increase in a different type of claim, discrimination “arising from” a disability.

Discrimination ‘arising from’ a disability

The Equality Act defines claims relating to direct and indirect discrimination, harassment and victimisation as prohibited conduct. However, it is also possible to bring a claim for discrimination arising from a disability under S.15 of the Equality Act; but when does this actually occur? 

Robinson v Department for Work and Pensions

This case of Robinson v DWP demonstrates a claim for alleged discrimination arising from a disability. In this case, the Claimant was an administrator and suffered from migraines and blurred vision, which was recognised as a disability. She required screen magnification software however, it was not compatible with the system used.

After various unsuccessful attempts by her employer, the Respondent, to improve the Claimant’s working conditions, she brought grievances relating to the delay in implementing the required adjustments. After a delay, the Claimant’s grievances were upheld, and the Respondent issued an apology, however, the outcome was appealed by the Claimant due to no compensation being afforded for the stress suffered. As no satisfactory outcome was reached, she brought a claim for discrimination ‘arising from’ a disability and failure to make reasonable adjustments.

The Employment Tribunal ("ET") upheld the Claimant’s complaint of discrimination arising from a disability but dismissed the reasonable adjustment claim.

The DWP appealed the matter to the Employment Appeal Tribunal ("EAT") on the discrimination point they had lost. On appeal, the EAT confirmed the ET was bound on its own finding of fact and overturned the discrimination arising from disability finding against DWP. The Claimant appealed to the Court of Appeal.

The Court of Appeal rejected the appeal. In its judgment, they confirmed that in order for such a claim to be successful in such claims, the treatment (whether less favourable or unfavourable) complained of must have been as a consequence of the disability. It was found that whilst the delay had consequences for the employee, this does not automatically necessarily mean that it is discriminatory. What was important was what was in the mindset of the relevant manager at the time and his motivations.

In this case, the tribunal concluded that the decisions made by the Respondent as to the Claimant’s concerns and grievances were not motivated by her disability and as a result, the discrimination appeal could not be successful.   

What does this mean for your business?

The case of Robinson v DWP highlights the importance of an employer’s motivation and provides clarity on how claims for discrimination arising from a disability should be approached and dealt with. It also confirms that tribunals will look at the reasons for, and intentions of, any less favourable or unfavourable treatment, rather than whether the treatment would have occurred ‘but for’ a disability.

What do you need to be doing now?

Employers should ensure that concerns raised are dealt with in a timely manner, including making any reasonable adjustments. Any issues around implementing required adjustments should also be discussed with the employee openly.

The Court of Appeal judgment is available here.

 

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.

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