Employee trend in disability discrimination cases

Under s15 of the Equality Act 2010, an employee argues that their employer treats them unfavourably because of ‘something’ arising in consequence of their disability and argues that the employer cannot show that treatment is a proportionate means of achieving a legitimate aim.

In a recent case, a university Professor was made promises when she was recruited regarding the refurbishment of the chemical processing engineering laboratory she was using.  She raised concerns about the delays in this work, as well as the lack of technical support she received, compared with a particular male colleague.  After three years she was diagnosed with work related stress and depression and ultimately raised a grievance complaining of sex discrimination.  Edinburgh University conducted a diversity review and agreed that there were cultural problems within the School of Engineering, although they wouldn’t go as far as to say that the problems were caused by gender bias.  The Professor asked to move out of the school, but the University wanted her to continue in her laboratories, so everything came to an impasse.  Ultimately the Professor’s fixed term contract was due to expire and then her work permit expired.  Acceptable options outside of the department were identified but ultimately the University terminated her employment by reason of the expiry of the work permit.

The Professor bought claims in the Employment Tribunal, including failure on the part of the University to make reasonable adjustments and that their requirement that she return to work at the School of Engineering flowed from her disability related absence, and bought a complaint under s15 of the Equality Act arguing that her dismissal was therefore connected to her disability  At first instance the tribunal rejected both of her claims and were sympathetic towards the University because it believed that the work permit could not be extended, if the employee was not prepared to return to work in the position for which the permit had been granted.  The Tribunal understood that it would have been difficult for the employee to return to work because of hostility from colleagues, but there was no evidence that the requirement for her to work there placed her at a substantial disadvantage because of her disability.

An Appeal Tribunal found that the original Judge had erred in three respects:

1. The tribunal had overlooked the disadvantage that had been pleaded by the Professor. It was her case that as a person with depression, she was unable to return to the school and her future employment was at risk.

2. The tribunal had found it was necessary for the Professor to prove facts from which it could conclude she was placed at a substantial disadvantage because of her disability however, the EAT noted that s20 of the Equality Act does not contain a strict causation test. Rather it requires a comparison as to whether a particular provision criteria or practice that you are looking at, has the effect of disadvantaging the disabled person more in comparison to others that didn’t share that disability.

3. Medical evidence was not a pre-requisite. The Professor had produced evidence to show her ill-health had continued throughout the relevant period and that she felt unable to return to work. Her absence was supported by doctor’s notes, and there was no alternative reason for her failure or refusal to return.  Therefore, there didn’t need to be further medical evidence.

The critical question was whether the Professor’s refusal to return to work was because of her disability or because of some other reason like her refusing to do so. The EAT pointed out that both reasons could be at play if the disability caused her to experience anxiety and stress and an inability to return to the place where she perceived the mistreatment and hostility to be located, leading to her refusal.  Thus, they felt the Judge had been far too strict with the causation test.

The critical question which the tribunal hadn’t asked itself, was whether the Professor’s refusal to return had arisen in consequence of her disability.  This is a looser connection and potentially involved more than one link in a chain of consequences.

The case reports however don’t deal with the extent to which the University could justify terminating her contract, and proportionate means of achieving a legitimate aim.  This is because the case would have been sent back to a fresh tribunal to decide that issue.

This must be a worry for employers who deal all the time with the aftermath of grievances when someone is saying that cannot return to a particular team or situation. It shows the law expects employers to be taking steps to positively manage that return and to think more creatively about how that return might happen in order to avoid discrimination complaints.