'Loose' Causation Test in Disability Discrimination Claims
The Employment Appeal Tribunal has confirmed that there need only be a 'loose' causal link between a person's disability and any unfavourable treatment in order for a discrimination arising from disability claim to be established.
Background
Ms Hall was employed as a Finance Director for West Yorkshire Police and suffered from various health conditions, including stress, anxiety, depression and Supraventricular Tachycardia (SVT).
In 2010, she took extended an sick leave from work after suffering from SVT-related stress. She subsequently underwent heart surgery in October 2010.
Following a report that Ms Hall had been spotted working in a pub during her period of absence, West Yorkshire Police appointed an investigating officer and began covert surveillance of her.
In addition:
- In November 2010, they sent Ms Hall a notice of investigation setting out what the EAT described as 'vague allegations' against her.
- This was followed by further correspondence stating that she was expected to return to work within the next ten days and was to have no further absences for a period of three months. She was also advised that she was at risk of redundancy.
- After she failed to attend a series of meetings due to ill health, West Yorkshire Police sent Ms Hall two further notices requiring her to return to work with no further absences for three months.
- In March 2011, Ms Hall was called to a disciplinary hearing. She was not given extra time to prepare her submission and so the hearing went ahead without her or her representative being present.
Following the hearing, Ms Hall was dismissed for gross misconduct.
Employment Tribunal (ET)'s Decision
Ms Hall brought claims for unfair dismissal and discrimination arising from disability under s15 of the Equality Act 2010. Section 15 applies where an individual is treated unfavourably because of 'something arising in consequence of their disability' and that treatment cannot be justified. Her claim for unfair dismissal was upheld, but the disability discrimination claim was dismissed.
The ET concluded that the connection between Ms Hall's disability and the unfavourable treatment by her employer was too remote for the s15 claim to be made out. It held that s15 required the disability to be the cause of the employer's action and 'not merely the background circumstance'. In the ET's view, West Yorkshire Police had acted on its erroneous belief that Ms Hall was falsely claiming to be sick rather than because of her disability.
Ms Hall appealed against this decision, arguing (amongst other things) that there did not need to be such a direct link between the employer's motivation and the unfavourable treatment.
EAT's Decision
The EAT upheld Ms Hall's appeal, finding that the employment tribunal had misinterpreted s15 and imposed too stringent a causal link between the disability and the unfavourable treatment.
The EAT highlighted three key areas where the ET was mistaken:
- Firstly, the ET seemed to have stated that it was necessary for the disability to be the cause of the employer's action for the s15 claim to succeed. In fact, the disability might be one of several causes.
- Secondly, the ET had distinguished between the disability being the main cause of the employer's action and being a background circumstance. This reasoning ignored an additional possibility, namely where the disability is a 'significant influence on the unfavourable treatment, or a cause which is not the main or the sole cause, but is nonetheless an effective cause of the unfavourable treatment'.
- Finally, the ET had taken into account the employer's motivation for the unfavourable treatment, which was an irrelevant consideration.
Best Practice
This case highlights the relatively low hurdle that claimants bringing actions under s15 need overcome. An employee must merely prove that the unfavourable treatment has come about as a consequence of their disability (subject to there being no justification argument available to the employer). The employer's motivation is irrelevant for these purposes.
It is also a useful to note what the ET and EAT saw as procedural failings. In its decision, the ET regarded West Yorkshire Police's failure to give Ms Hall sufficient time to consider the case against her, or to adequately prepare submissions for the disciplinary panel, as wholly unjustified. Employers should ensure that, in relation to conduct and performance dismissals, employees are given a reasonable opportunity to present their case.