Discrimination "arising from" a disability occurs if a claimant receives unfavourable treatment because of something arising in consequence of their disability. The latest EAT decision on the test stresses that it is not enough for unfavourable treatment to occur in the context of disability; there must be a causative link between the disability and the matter giving rise to the unfavourable treatment.
The claimant was a doctor who was on long-term sick leave with a serious lower-respiratory-tract infection. The nature of his condition fluctuated and although he had been able to travel abroad for professional courses and interviews, he had been too unwell to meet hospital management while he was absent. Eventually the employer took disciplinary action against him and dismissed him for gross misconduct, on the basis that he had misled the employer about his ability to attend face-to-face meetings during his absence.
Following the dismissal the claimant argued that taking disciplinary proceedings against him, failing to refer him to occupational health and the way in which the disciplinary proceedings had been handled (amongst other things) was discrimination arising from his disability. The tribunal upheld his claim, finding that there was a sufficient link between the treatment complained of and the claimant's disability.
The EAT overturned the decision. The tribunal had focussed on the context in which the treatment occurred but had not applied the correct statutory test. This required the tribunal first to identify what the reason for the unfavourable treatment was, and then to decide whether that reason is something that arose in consequence of the disability. There must be a causative link between the disability on one hand and the treatment complained of on the other. Here the tribunal had failed to distinguish between the context of the claimant's treatment and its cause.