The Equality Act 2010 protects employees from being discriminated at work due to disability which 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.
Professor Sheikholeslami was employed by the University in its School of Engineering. In January 2010, she was diagnosed with work-related stress and depression and was absent from work thereafter. In April 2010, she raised a grievance alleging sex discrimination. A diversity review of the School concluded that although there had not been any gender bias, there were cultural problems.
In January 2011, Professor Sheikholeslami suggested a move to a different school within the University as she felt that if she were to return to the school, her colleagues may be hostile towards her. The University did not agree to the move.
In 2012, the University dismissed Professor Sheikholeslami on the basis that, as she would not return to work in the School, it could not extend her work permit which expired in April 2012. Her employment was therefore terminated on the basis that her work permit had expired.
Following her dismissal, Professor Sheikholeslami brought various claims against the University, including:
- that her dismissal was due to her disability-related absence
- for failure to make reasonable adjustments in refusing to let her return to work in a different school
The Employment Tribunal rejected these claims and Professor Sheikholeslami appealed to the EAT.
The EAT's Decision
The EAT concluded that Professor Sheikholeslami was treated unfavourably because of her ongoing absence from her post. The crucial question was whether Professor Sheikholeslami's refusal to return to work was "because of her disability or because of some other reason".
The Tribunal had found that her refusal to return to work was because she perceived that she would be treated with hostility in the School and was 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 that her disability caused her to experience anxiety and stress because of potential hostility she might experience if she returned to the School. This meant that Professor Sheikholeslami's disability could be linked to her refusal to return to work.
The EAT held that there may be several links in a chain when determining whether unfavourable treatment arises because of a disability. This further demonstrates a trend towards loosening the causal link in discrimination claims.
HEIs should exercise caution when managing employees who meet the definition of a disabled person as there is an increasing risk that tribunals will link decisions made (or something done) to an employee's disability. In addition, HEIs should carefully explore what adjustments may be reasonable in circumstances where an employee is absent because of the effect of a disability.
That is not to say that HEIs 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 also important for HEIs to be able to justify any actions taken by showing they are a proportionate means to achieving a legitimate aim.
For further information please contact Jane Byford in our Higher Education team on 0121 227 3712.