The Court of Appeal reiterates that the relevant test for a claim for discrimination arising from a disability is whether the treatment complained of was ‘because of’ the Claimant’s disability, rather than ‘but for’ their disability.
- The Law
Section 15 of the Equality Act 2010 protects employees from discrimination arising out of their disability. This occurs where both 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 Claimant’s role for the Respondent was computer based and required her to use specialist software. The Claimant suffered a hemiplegic migraine in 2014 and later developed blurred vision in her left eye which made it difficult to work on a computer. A risk assessment was undertaken and it was recommended that screen magnification software be installed, however a significant number of technical difficulties caused a lengthy delay. This caused the Claimant considerable stress and resulted in long periods of absence. The Claimant subsequently lodged a grievance about the way the Respondent responded to her needs, which was upheld. The Claimant was thereafter moved to a paper-based role. A second grievance was brought seeking an apology, which she received, and compensation, which was unsuccessful.
The Claimant brought claims for discrimination arising from her disability under section 15 EqA 2010 and failure to make reasonable adjustments under Section 20 EqA 2010. The Employment Tribunal (‘ET’) upheld the Section 15 claim but dismissed the Section 20 claim. The Employment Appeal Tribunal (‘EAT’) disagreed and held that the Claimant had not been discriminated against. The Claimant appealed to the Court of Appeal.
The Court of Appeal agreed with the EAT and held that the ET’s finding of fact in this case did not support a finding of discrimination. It noted that direct discrimination and discrimination arising from a disability under the EqA 2010 both use the same phrase “because of.” Section 15 of the EqA 2010 therefore requires the “ET to ascertain whether the treatment (whether less favourable or unfavourable) was because of the protected characteristic and, as such, requires a tribunal to look at the thought processes of the decision maker(s) concerned.”
As highlighted by the EAT, it is not enough for the treatment of the Claimant to have been motivated by the consequences of the disability, “only by applying the forbidden "but for" test can it be said that the claimant's symptoms caused her to be treated as she was”. The relevant consideration is whether the unfavourable treatment was because of the Claimant’s disability and it is therefore necessary to examine the conscious and unconscious thought processes of the relevant managers, which the ET did not engage in.
It was further held that the Respondent’s decision to move the Claimant to a paper-based role was not unfavourable treatment. Rather, it was plainly reasonable and proportionate in light of the difficulties she experienced using a computer and the fact that this enabled her to remain at work on the same pay grade. It was therefore an incontestably legitimate aim.
- Implications for employers
It is clear from this decision that it is not enough for the Claimant to simply argue that ‘but for’ their disability they would not find themselves in the situation complained of. The Court of Appeal’s emphasis on the importance of the thought process of managers and the reason behind the alleged unfavourable treatment provides useful clarification for employers.