The Employment Appeal Tribunal (EAT) has considered the test for claims of discrimination “because of something arising in consequence of the claimant's disability” – and appear to be relaxing that test. Employers must now be wary of such claims in a widening range of circumstances.
First, some background. This type of claim, usually known as "discrimination arising from a disability", was introduced in 2010 to avoid the necessity for disabled claimants to show a close causal link between their disability and related detrimental treatment. This was an acknowledgement that it may be the effects or consequences of a disability, rather than the medical condition itself, which has the most severe impact on a disabled individual and their treatment at work. The classic example would be an employee with a disability who has more sickness absence than a non-disabled employee, who is disciplined as a result of the absence record rather than because of the underlying disability. This would not be captured by direct disability discrimination but would fall within “discrimination arising from a disability" (although the employer may be able defend the treatment as justified and therefore lawful depending on the circumstances).
In the case of Risby v London Borough of Waltham Forest, the EAT has considered the necessary causal link between a worker's disability and the conduct which led to the unfavourable treatment by the employer, for the purposes of such a claim.
Mr Risby is a paraplegic and uses a wheelchair. He was employed by London Borough of Waltham Forest (LBWF) until he was dismissed for gross misconduct in 2013.
As part of cost saving measures, LBWF decided to change the location of its training workshops for managers from an external venue with wheelchair access, to a basement at one of the LBWF’s premises which did not have wheelchair access. Mr Risby was known for having a short temper, and reacted badly to this change of venue – leading to him shouting and using language that was perceived as racist to a colleague. Mr Risby was subsequently suspended and was escorted from the premises.
LBWF commenced a disciplinary process against Mr Risby and despite an appeal concluded that, especially due to his aggressive behaviour and use of potentially racist language, it had no alternative but to dismiss him.
Mr Risby brought claims for unfair dismissal and discrimination arising from a disability against LBWF. The Tribunal dismissed his claims, and in particular held that there was no direct link between Mr Risby’s disability and his behaviour. However, the EAT has since allowed Mr Risby’s appeal on both claims, and remitted the case to a fresh Tribunal for rehearing. In particular, the EAT found that there only needs to be a very loose connection between a person’s disability and his/her conduct. If Mr Risby had not been in a wheelchair, he would not have been so offended by the Borough’s decision – and the EAT held that his misconduct was the “product” of this indignation and that his disability was an “effective cause”.
Last year’s case of Hall v Chief Constable of West Yorkshire Police is indicative of the increasingly wide test for discrimination arising from a disability established by the courts, and the Risby case follows that trend. The EAT in Hall identified that there only needs to be a loose causal link between the thing arising in consequence of a disability and the unfavourable treatment suffered. The present case appears to go further still, as Mr Risby’s short temper was unrelated to his disability, but the EAT still considered that LBWF’s actions still fell within the scope of section 15 of the Equality Act 2010 simply because the circumstances leading to Mr Risby’s dismissal would not have arisen had he not been disabled.
What does this mean for employers?
It is worth noting that no final decision has been reached on Mr Risby’s claims, and a fresh Tribunal will rehear these following the EAT’s guidance. LBWF may still potentially be able to justify the unfavourable treatment in the case – that is, if it can show that its decision to dismiss him was a proportionate means of achieving a legitimate aim, such that there was no alternative to dismissal and the discriminatory impact of this was proportionate in upholding its equal opportunities policy.
However, the key message for employers is that it may not be immediately obvious when it is making a decision which is related to or in consequence of a person’s disability. When dealing with disabled employees, it is important to consider in increasingly broad terms whether the reason for any proposed decision or sanction may relate to the employee's disability or something associated with it and, if so, to assess whether it can justify this as a proportionate means of achieving a legitimate aim.