In an arising from claim under S 15 Equality Act 2010 there are two distinct causative issues:
1.Did A treat B unfavourably because of an (identified) “something”
2. did that “something” arise in consequence of B’s disability.
If the Claimant (B) establishes the above, the Tribunal must them go on to consider the ‘proportionate defence’ namely whether the Respondent (A) has shown that the treatment is a proportionate means of achieving a legitimate aim.
City of York Council v Grosset  EWCA Civ 1105 has I believe led to an increase in ‘arising from’ claims being brought in the Employment Tribunal. So practitioners are advised to better acquaint themselves with this particular section of the Equality Act 2010.
In this recent case, Baldeh v Churches Housing Association of Dudley & District Ltd UKEAT/0290/18, the Employment Appeal Tribunal looked at knowledge and what was required to establish a link between the alleged treatment (in this case dismissal) to the disability
What was it about?
Concerns were raised during the Claimant’s probation over five matters:
- Breach of professional boundaries by loaning a service user money without authorisation.
- A complaint from a service user about the tone of a text message which you sent to them.
- Two Incidents of breaching data protection in regards to not maintaining confidentiality of service user information.
- Failing to consult with senior staff relating to an instruction left for you on 01 05 15, you stated that another team member told you not to
- Your communication and how you relate with your colleagues and myself.”
The claimant’s probation was terminated and she was dismissed. Only at her appeal against the dismissal did the claimant raise the issue of her mental health (depression) having impacted one of the five issues namely her communication/how she related with colleagues. Although (as HHJ Shanks pointed out during the appeal) the issue could have potentially impacted on some of the other concerns.
The Employment Tribunal rejected her claim that her dismissal arose from her disability. The tribunal did this because they found the Respondent did not have knowledge of her disability and because there were other reasons unrelated to her disability and these reasons on their own were sufficient to warrant her dismissal. The Employment Tribunal did not go on to address the issue of proportionality.
What did the Employment Appeal Tribunal think?
Shanks J allowed the appeal. His judgment looked at a number of issues however I would pick out the following two points of being of particular interest:
- Knowledge: Although the Respondent did not know about the Claimant’s disability at the time of the dismissal, they may have acquired actual or constructive knowledge of it before the rejection of her appeal and the rejection of the appeal formed part of the unfavourable treatment of which she was complaining.
- Material influence: It was sufficient for the “something arising in consequence” of the disability to have a “material influence” on the unfavourable treatment. The fact that there may have been other causes as well was not an answer to the claim.
What can we take away?
Perhaps the first point should not have come as a surprise as until the dismissal procedure including the appeal is concluded the respondent can alter its decision. An appeal provides an employee with an opportunity to challenge a decision and so the disclosure of a disability at an appeal would be a relevant matter to consider.
The material influence is perhaps more concerning for employers as it is not unusual for there to be multiple causes leading to an employer deciding to terminate an employee’s employment during the probationary period. Something materially influences a decision if it is more than a trivial influence. So in this case unless the employer could show that the interaction with colleagues played no real part in the decision then the employer would have terminated the employee’s employment because of something arising in consequence of her depression (disability).
Of course that is not the end of the matter. An employer can defend such treatment by showing that the dismissal was a proportionate response. The weight of the other matters which were unrelated to the disability could come into play at this point as would any possible adjustments which might have prevented the concerns arising in the first place. In this particular case the Employment Tribunal did not address this. It will no doubt be an important issue at the rehearing.
I have found that in many cases employers tend to focus their defence on the treatment not arising from the disability instead of the equally important issue of the proportionate response defence. In such cases the proportionate defence is either not pleaded at all or in general terms with limited evidence being adduced on the point. If the employer had addressed this issue at the original hearing it may well be that the proportionate defence would have succeeded and the appeal, if not avoided, would have been unsuccessful.