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Disability Discrimination - The Court of Appeal Offers Guidance to Employers

on Friday, 24 July 2020.

The Equality Act sets out various discrimination claims employees can bring where a relevant protected characteristic is present.

Claims relating to direct discrimination, indirect discrimination, victimisation and harassment are included in this act.

In the context of disability, it is also possible to bring specific claims for discrimination arising from a disability, and for the failure to make reasonable adjustments.

Alleged Discrimination

The case of Robinson v DWP focuses on a claim for alleged discrimination arising from a disability. In this case, the Claimant suffered migraines and blurred vision, which was acceptably recognised as a disability. She required screen magnification software that was incompatible with a computer system she used. Various unsuccessful attempts were made to ameliorate the Claimant's working conditions so that she could see the screen more easily. Progress was slow, and in the absence of a solution to the computer software issue, the Claimant was transferred to other, paper-based work in a different department for over a year.

The Claimant brought grievances relating to the delay in implementing the adjustments needed to undertake computer-based work. Her grievances were upheld and an apology was issued by her employer. She appealed the outcome on the basis that no compensation was offered for the stress and difficulties she had experienced. In the absence of a satisfactory outcome to her appeal, she issued proceedings in the Employment Tribunal (ET).

At first instance, the ET upheld the claim of discrimination arising from disability but dismissed the claim for failure to make reasonable adjustments. The ET's decision was overturned by the EAT. The Claimant accepted the EAT's findings in respect of her failure to make reasonable adjustments claim, but appealed to the Court of Appeal in respect of the discrimination arising from disability claim.

The Court of Appeal rejected the Claimant's appeal. It confirmed that in order to succeed in a claim for disability arising from disability, it is necessary for the treatment complained of to be because of the disability, with the "conscious and/or unconscious thought processes of the putative discriminators is likely to be necessary". It is insufficient to show that 'but for' a disability, the disadvantage complained of would not have arisen. In this case, the ET had made no findings of fact from which it could be inferred that the employer was motivated by the Claimant's disability in how it dealt with her concerns. The facts established by the ET suggested that it had attempted to address her concerns but failed to adequately do so.

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What Can Employers Learn From This Case?

This decision highlights the importance of the decision-maker's motivation in the context of claims for discrimination arising from disability. In this case, the employer might have displayed ineptitude, but the Claimant's disability was not the reason for the delay she faced. Employers should however be mindful of the potential scope for a successful failure to make reasonable adjustments claim where reasonable adjustments are identified but not implemented. Dealing with concerns raised by disabled employees in a timely fashion and maintaining open communication around any barriers to implementing adjustments may help avoid staff feeling aggrieved enough to litigate.

For specialist legal advice in relation to disability discrimination, please contact Jo Oliver in our Employment team on 07909 547 537, or complete the form below.

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