29th October 2018
The concept of discrimination arising from a disability was a new claim introduced by the Equality Act in 2010, and was intended to replace the “disability-related” discrimination rules under the previous legislation.
The aim of the new statutory provision - found in section 15 of the Act - was to ensure a balance between a disabled employee being protected if they have suffered a detriment arising from their disability and allowing the employer an opportunity to defend that treatment.
What the law says
S15 (1) of the Act sets out that discrimination arising from disability occurs where:
An example of discrimination arising from a disability given in the Equality and Human Rights Commission (EHRC) code is that of an employer dismissing a disabled employer because they have taken a lengthy period of sick leave, in circumstances where their absence was disability-related. The employer’s decision to dismiss was not because of the employee’s disability itself, so they would not have a claim of direct discrimination. Instead, the employee has been treated unfavourably because of something arising in consequence of their disability, so they would have a s15 claim.
The EHRC code states there must be a causal link between the disability and the behaviour of the employee leading to their dismissal. However, the recent Scottish Employment Appeal Tribunal (EAT) in Sheikholeslami v University of Edinburgh has emphasised the recent trend that ‘something arising in consequence of disability’ entails a 'looser connection' than strict causation and may involve more than one link in a chain of consequences.
Case law prior to Sheikholeslami
In Hall v Chief Constable of West Yorkshire Police, Ms Hall, a disabled employee, was dismissed for gross misconduct because of her employer’s genuine, albeit mistaken, belief that she was falsely claiming to be sick. Ms Hall brought claims for unfair dismissal and discrimination arising from disability under s15 of the Act.
The tribunal concluded that s15 requires the disability to be the cause of an employer’s action and that the connection between Ms Hall’s disability and the unfavourable treatment was too remote to meet the requirements of the s15 test, a decision which Ms Hall appealed. The EAT disagreed, deciding the employer’s motivation was irrelevant: it found that Ms Hall had been dismissed for taking sick leave which was due to her disability, and therefore this loose causal connection was enough to satisfy the s15 test.
The case of Risby v London Borough of Waltham Forest appeared to loosen the causal link between the disability and the detriment further. Mr Risby, a paraplegic, lost his temper and verbally abused a colleague when he learned his employer had moved a course venue to a basement that was inaccessible to him as a wheelchair user. A tribunal found Mr Risby’s short temper was a personality trait not related to his disability and rejected his claims of unfair dismissal and discrimination. He appealed to the EAT, which considered there was a sufficient link between Mr Risby's disability and his loss of temper. It reasoned he would not have been angered by the change in venue to one inaccessible to wheelchair users had he not been a wheelchair user himself.
The EAT found that although Mr Risby's short temper was unrelated to his disability, it was his employer’s failure to accommodate his needs as a disabled person which caused him to lose his temper; and this was considered by the EAT to be sufficient to meet the s15 test.
Sheikholeslami v University of Edinburgh
Sheikholeslami v University of Edinburgh takes the loose causal link a step further - it not only maintains a loose causal link is sufficient for s15, but there can also be more than one link in the chain of causation.
Ms Sheikolesalami was recruited from overseas and commenced employment with the university in May 2007 as a professor. During her time with the university, she raised a number of issues including lack of technical support and unfair treatment when compared to the treatment of her male colleagues.
In January 2010, Ms Sheikolesalami was diagnosed with work-related stress and depression. In January 2011, she wrote to the university suggesting a gradual reintegration to the workplace via another school after her lengthy absence. While this was not ruled out by the university, it expressed a wish that Ms Sheikolesalami return to her existing department as a result of which the parties reached an impasse. In October 2011, the university’s HR department began considering options to extend Ms Sheikolesalami’s stay in the UK, as her work permit was due to expire on 12 April 2012. Various options were identified, but these steps were not explored by the university and not discussed with Ms Sheikolesalami. The university eventually dismissed Ms Sheikolesalami on 12 April 2012, because it believed there was no basis on which her work permit would be extended if she was not prepared to return to work in the department for which it had been granted.
Ms Sheikolesalami brought a number of claims, including a claim of discrimination arising from disability under s15 in that her dismissal flowed from a disability-related absence. The employment tribunal rejected this, finding her dismissal was due to her unwillingness or inability to return to her existing post rather than her absence. The tribunal held there was no causal connection between this refusal and her disability.
In Ms Sheikolesalami’s subsequent appeal, the EAT found that the tribunal had applied too strict a test of causation to the question of whether the university’s mistreatment was as a result of Ms Sheikolesalami’s disability. It held that it in a case like this where it was Ms Sheikolesalami’s mental health disability that caused her absence from work, and where it was evidenced that this disability was a result of her work environment - in Ms Sheikolesalami’s case, the perceived discriminatory treatment and hostility from colleagues - the cause of the disability and its effects "are all so interlinked that the broad causation question in s15 is capable of being satisfied..".
As such, employers need to be aware that more than one link in the chain of consequences – or a “looser connection” - between the disability and the reason for the treatment being complained of - may well be enough to satisfy the s15 test.