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"Something Arising in Consequence of Disability" Can Include a More Complex Chain of Circumstances

on Friday, 19 October 2018.

The Scottish Employment Appeal Tribunal (EAT) confirms "the causal connection between the something that causes unfavourable treatment and the disability my involve several links depending on the facts of a particular case".

Legal Background

The Equality Act 2010 protects employees from being discriminated against at work due to disability, this includes being treated unfavourably because of something arising in consequence of a disability. Any unfavourable treatment can only be justified if the employer can show it is a proportionate means of achieving a legitimate aim.

Sheikholeslami v University of Edinburgh

Professor Sheikholeslami was employed by Edinburgh University as the Chair of Chemical Process Engineering. In January 2010, Professor Sheikholeslami was diagnosed with work-related stress and depression and was absent from work from then onwards. In January 2011, in an effort to return to work, Professor Sheikholeslami suggested a move to a different school within the University. This was suggested because, in April 2010, she had raised a grievance against the School for sex discrimination and felt that if she were to return to the School her colleagues may have been hostile towards her.

In 2012, the University dismissed Professor Sheikholeslami as, because she would not return to work at the School of Engineering, they had no options for extending her work permit. Her employment was therefore terminated on the basis that her work permit had expired.

Following dismissal, Professor Sheikholeslami brought various claims against the University including claims:

  • that her dismissal was due to her disability-related absence; and
  • for failure to make reasonable adjustments in refusing to let her return to work at a different school.

The Employment Tribunal (ET) rejected both of these claims and Professor Sheikholeslami therefore appealed to the EAT.

The Employment Appeal Tribunal

The EAT concluded that Professor Sheikholeslami was treated unfavourably because of her ongoing absence from her post. The crucial question was therefore whether Professor Sheikholeslami's refusal to return to work was "because of her disability or because of some other reason".

The ET had found that her refusal to return to work was because of having been treated badly in the department and therefore not because of her disability. However, the EAT held that it is not possible to address these points in isolation as it might be her disability caused her to experience anxiety and stress because of potential hostility she might experience if she returned to the department. This meant that Professor Sheikholeslami's disability could be linked to her refusal to return to work.

Best Practice

The EAT in this case held that there may be several links in a chain of consequences when determining whether unfavourable treatment arises because of a disability. This further demonstrates a trend towards loosening the causal link in discrimination claims.

Employers should therefore exercise caution when managing employees who meet the definition of a disabled person under the Equality Act 2010 as there is an increasing risk that tribunals will link decisions made (or something done) to an employee's disability. In addition, employers should carefully explore what adjustments might be reasonable in circumstances where an employee is absent because of the effect of a disability.

That is not to say that employers cannot take decisions which impact disabled employees but care should be taken when reviewing these decisions as it will not always be obvious what the effects of an employee's disability are. It is therefore also important for employers to be able to justify any actions taken by showing they are a proportionate means to achieving a legitimate aim.


For further information on employment issues, please contact Mark Stevens in our Employment Law team, on 0117 314 5401.

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