Disciplinary investigation based on mistaken belief about disability claim sent back to tribunal

Background

In Shah v Home Office, the claimant had been absent from work with depression before applying for a new role under the Home Office's Guaranteed Interview Scheme (GIS), which guaranteed interviews to disabled applicants who met the minimum criteria.

The claimant selected the option requesting consideration under the scheme. His line manager suspected that he was falsely claiming to be disabled in order to secure an unfair advantage and commenced a disciplinary investigation. The investigation was subsequently discontinued after the claimant's explanation was accepted.

The claimant brought claims for discrimination arising from disability under section 15 of the Equality Act 2010 and victimisation. The employment tribunal dismissed both claims. It was accepted that the claimant had applied under the GIS because of his disability, but concluded that the disciplinary investigation had been triggered by the employer's genuine belief that he had acted dishonestly, rather than because of his disability. It also held that applying under the GIS was not a protected act for the purposes of the victimisation provisions.

Decision

The Employment Appeal Tribunal allowed the appeal.

In relation to the discrimination arising from disability claim, the EAT held that the tribunal had focused on the wrong question. The relevant unfavourable treatment was the decision to commence the disciplinary investigation. The relevant "something" arising from the claimant's disability was his decision to apply under the Guaranteed Interview Scheme. As the tribunal had already found that the claimant applied under the scheme because of his disability, the necessary causal link was established.

The employer's genuine, but mistaken, belief that the claimant had acted dishonestly did not break that causal chain. The EAT emphasised that the disability-related "something" need only have had a significant influence on the unfavourable treatment; it need not be the sole or principal cause. The tribunal had therefore applied the wrong causation test.

The EAT also held that the tribunal had failed to properly consider whether the claimant's use of the Guaranteed Interview Scheme was connected to the statutory positive action provisions in sections 158 and 159 of the Equality Act 2010. That question was relevant to whether the claimant had carried out a protected act for the purposes of his victimisation claim.

The case was remitted to the same tribunal to determine whether the disciplinary investigation was objectively justified under section 15(2) of the Equality Act 2010 and to reconsider the victimisation claim.

Learning points

This decision is a useful reminder that, in claims for discrimination arising from disability, the focus should be on whether the unfavourable treatment arose because of "something" resulting from the employee's disability, rather than on the employer's motivation. An employer's genuine belief that an employee has acted dishonestly will not necessarily defeat a section 15 claim if that belief itself arose from disability-related conduct.

The decision also highlights that employers should exercise caution before questioning an employee's entitlement to rely on disability-related adjustments or schemes. Where an employee's request is made because of their disability, disciplinary action taken in response may engage section 15, even if the employer genuinely believes the employee has acted improperly.

Finally, the case serves as a reminder that requests made under positive action initiatives may, depending on the circumstances, amount to protected acts under the victimisation provisions. Whether that is the case will depend on the facts, but tribunals must address the issue where it is properly raised.

For more information or advice, please get in touch with Lucy Cinnamond in our Employment team.