What’s the right approach to multiple allegations of disability discrimination?

In a claim for disability discrimination under section 15(1) of the Equality Act 2010 (‘EA 2010’), Employment Tribunals should not approach multiple allegations in a composite manner.

The Employment Tribunal fell into that mistake in the recent case of Madani Schools Federation v Mr Uddin UKEAT/0194/16/BA, according to the Employment Appeal Tribunal (‘EAT’).

The EAT concluded that separate consideration should be given to each allegation of unfavourable treatment and the reason/s for each allegation. It overturned the Employment Tribunal’s judgment in favour of the Claimant and sent the case back to the Tribunal to decide that part of the case afresh.

WHAT WAS THE CASE ABOUT?

The battlefield in workplace discrimination claims often centres on what lawyers call ‘causation’.

In certain claims, such as direct discrimination cases, the evidence must show a link between the conduct of the employer and the protected characteristics under the EA 2010 (ie. race, sex, disability, religion or belief, etc.). It is never enough for someone to prove that they have been treated badly. The ill-treatment must be ‘because of’ sex or disability, etc.

Uddin concerned a claim based on discrimination arising from a disability, (known as ‘DAFD’). Section 15 EA 2010 provides that a person (‘A’) discriminates against a disabled person (‘B’) if A treats B unfavourably because of something arising in consequence of B’s disability, and A cannot show that the treatment is justified.

The Claimant in Uddin was a PE instructor. He had raised long running, unaddressed grievances about his treatment by the School. He alleged that the mistreatment was linked to the fact that he was off-sick with a range of mental health issues (themselves a product of work-related stress). The “something arising from” his disability was his sickness absence.

Matters came to a head and the Claimant was unfairly dismissed for refusing to comply with a management instruction.

The Claimant made 6 separate allegations of discrimination in his DAFD claim. There was no real dispute that he had been treated unfavourably. The question for the tribunal was why he had been treated so. The Tribunal found in favour of the Claimant on 5 out of the 6 allegations.

THE EAT’S DECISION

His Honour Judge Shanks of the EAT concluded that the Employment Tribunal erred in its findings on causation by failing to consider the issue of causation in relation to each of the 5 allegations, rather considering causation on all of the allegations together.

The EAT approved the approach of the President of the EAT in Pnaiser v NHS England [2016] IRLR 170 at paragraph 31. In summary, a Tribunal should:

• Identify what the unfavourable treatment was;
• Determine what caused the unfavourable treatment (ie. what was the subjective reason, conscious or unconscious, for the treatment);
• Consider whether the cause was “something arising in consequence of” the person’s disability. The more links in the chain between the “something” and the disability, the harder it is likely to be to show a causal connection. This stage is an objective test.

The Tribunal failed on this occasion to address each of the last 2 points for each of the 5 allegations it had found proven. As such, the Tribunal failed to correctly draw the line between context and cause.

WHY DOES IT MATTER?

Advisers should ensure that any claim for discrimination under section 15 clearly identifies and addresses each point of the causation test in Pnaiser and, more widely, avoid asking Tribunals to deal with multiple allegations of discrimination as a whole when it comes to determining the cause of the treatment complained of. This is an important tactical consideration in the presentation of claims and defences.

John Small of the 36 Group’s employment team represented the appellant, instructed by Bond Adams.

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