The Employment Appeal Tribunal (EAT) has confirmed that discrimination arising from disability requires a much looser test of causation than strict causation, with potentially more than one link in a chain of consequences.

Sheikholeslami v University of Edinburgh, UKEAT/2018/0014

Facts

Ms S was a professor in the School of Engineering. She had been diagnosed with work-related stress and depression and was off work for over two years prior to the termination of her employment.

Whilst off sick, she raised a grievance complaining of sex discrimination. The university conducted a diversity review, which concluded that cultural problems existed within the School of Engineering. Ms S’s request to move out of the department was refused. Her employment was eventually terminated on the grounds that her work permit had expired.

She brought a number of claims against the university, including a failure to make reasonable adjustments and discrimination arising from disability. These claims were rejected by the employment tribunal. It was satisfied that there was no causal connection between Ms S’s refusal to return to work and her disability; she had been dismissed not because she was absent but because she was unable or unwilling to return to work in her existing post. The university had believed that there was no possibility of her work permit being extended if she was not prepared to return to work in the position for which the permit had been granted. Ms S appealed to the EAT.

EAT decision

The EAT upheld the appeal. The tribunal had been wrong to conclude that there was no evidence of any link between Ms S’s disability and her absence, or her refusal to return to work. It had applied too strict a test of causation. The critical question was whether her refusal to return arose ‘in consequence of’ her disability, rather than being caused by it. If Ms S’s disability caused her to experience anxiety and stress, making her unable to return to work in a place where she perceived the mistreatment and hostility to be located, her refusal to return could be regarded as a consequence of her disability. The test of causation in such cases might involve more than one link in the chain of consequences.

Consequences

The decision follows the Court of Appeal’s decision in the case of City of York v Grosset, in which it held that it is not necessary for an employer to be aware of the consequences of an individual’s disability to be liable for a discrimination ‘arising from’ disability claim.

These cases both show that the question of causation will be loosely interpreted by employment tribunals in claims for discrimination arising from disability. This is likely to be particularly relevant in cases concerning work related stress or depression, where the disability, its cause and its effects are all closely interlinked. It is, therefore, important that employers can show evidence to demonstrate justification in such cases in order to avoid potential liability.