T-Systems Ltd v Lewis (Disability Discrimination: Disability related discrimination) [2015] UKEAT 0042_15_2205

EAT
T-Systems Ltd v Lewis (Disability Discrimination: Disability related discrimination)
[2015] UKEAT 0042_15_2205 · 2015-05-22
[33]“33. Until the coming into force of the Equality Act 2010 the duty to make reasonable adjustments tended to bear disproportionate weight in discrimination law. There were, I think, two reasons for this. Firstly, although there was provision for disability-related discrimination the bar for justification was set quite low: see s. 5(3) of the 1995 Act and Post Office v Jones [2001] IRLR 384 . Secondly, the decision of the House of Lords in London Borough of Lewisham v Malcolm [2008] IRLR 700 greatly reduced the scope of disability-related discrimination. With the coming into force of the Equality Act these difficulties were swept away. Discrimination arising from disability is broadly defined and requires objective justification.[34]In many cases the two forms of prohibited conduct are closely related: an employer who is in breach of a duty to make reasonable adjustments and dismisses the employee in consequence is likely to have committed both forms of prohibited conduct. But not every case involves a breach of the duty to make reasonable adjustments, and dismissal for poor attendance can be quite difficult to analyse in that way. Parties and employment tribunals should consider carefully whether the duty to make reasonable adjustments is really in play or whether the case is best considered and analysed under the new, robust, s.15. ” 20. Mr Skinner made reference to the Explanatory Notes to section 15. They are to similar effect:
“ Background 70. This section is a new provision. The Disability Discrimination Act 1995 provided protection from disability-related discrimination but, following the judgment of the House of Lords in the case of London Borough of Lewisham v Malcolm [2008] UKHL 43 , those provisions no longer provided the degree of protection from disability-related discrimination that is intended for disabled people. This section is aimed at re-establishing an appropriate balance between enabling a disabled person to make out a case of experiencing a detriment which arises because of his or her disability, and providing an opportunity for an employer or other person to defend the treatment. Examples · An employee wish a visual impairment is dismissed because he cannot do as much work as a non-disabled colleague. If the employer sought to justify the dismissal, he would need to show that it was a proportionate means of achieving a legitimate aim. · The licensee of a pub refuses to serve a person who has cerebral palsy because she believes that he is drunk as he has slurred speech. However, the slurred speech is a consequence of his impairment. If the licensee is able to show that she did not know, and could not reasonably have been expected to know, that the customer was disabled, she has not subjected him to discrimination arising from his disability. · However, in the example above, if a reasonable person would have known that the behaviour was due to a disability, the licensee would have subjected the customer to discrimination arising from his disability, unless she could show that ejecting him was a proportionate means of achieving a legitimate aim.” 21. It is always good discipline for an Employment Tribunal to consider separately and make clear findings as to the different elements which combine to make a conclusion that there has been a contravention of the provisions of the Equality Act 2010 . I will therefore set out the elements which combine to make a finding of unlawful discrimination arising from disability in the employment field and analyse this case in that way. In a case such as this, where disability and knowledge of disability are admitted, there are five elements. 22. First, there must be a contravention of section 39(2). In this the Claimant relied on dismissal as the contravention of section 39(2) (see section 39(2)(c)). 23. Secondly, there must be unfavourable treatment. The Employment Tribunal did not define, when it listed out the issues, what the unfavourable treatment was alleged to have been. Mr Currie and Mr Williams both say that the unfavourable treatment was alleged to be the dismissal. This is exactly what I would expect. Save possibly in the very rare case where an employee for some reason wishes to be dismissed, dismissal will always unfavourable treatment for the purposes of section 15. 24. The Employment Tribunal, however, said something rather different in paragraph 24 of its Reasons. It said, reading the last three sentences together, that the unfavourable treatment was adding a factor (the Claimant’s inability to agree the new working pattern) to the balance in favour of dismissal. I do not think this was the correct approach. Unfavourable treatment is that which the putative discriminator does or says or omits to do or say which places the disabled person at a disadvantage. Here it was the dismissal. Unfavourable treatment is not the mental process which lead the putative discriminator to behave in that way. 25. The Equality Code deals with unfavourable treatment as follows: “5.7. For discrimination arising from disability to occur, a disabled person must have been treated ‘unfavourably’. This means that he or she must have been put at a disadvantage. Often, the disadvantage will be obvious and it will be clear that the treatment has been unfavourable; for example, a person may have been refused a job, denied a work opportunity or dismissed from their employment. But sometimes unfavourable treatment may be less obvious. Even if an employer thinks that they are acting in the best interests of a disabled person, they may still treat that person unfavourably.” 26. However, although the Employment Tribunal was wrong in its classification of what amounted to unfavourable treatment, this does not take the Respondent’s appeal very far. On any possible view the dismissal was unfavourable treatment. Moreover the Employment Tribunal’s assessment of the mental processes of the person who dismissed the Claimant will be important in respect of other elements to which I will come. 27. Thirdly, there must be “something arising in consequence of the disability”
. I see no reason why this phrase should not be given its ordinary, natural meaning. Like Underhill J in Millar I consider that the words give rise to no real difficulty. I reject Mr Williams’ submission that the something must in all circumstances be something over which the employer has no control or that it is limited to effects on the disabled person alone, not the employer. I see no warrant for cutting down the ordinary meaning of the words. 28. Again, I find the Code helpful. It provides as follows:
“5.9. The consequences of a disability include anything which is the result, effect or outcome of a disabled person’s disability. The consequences will be varied, and will depend on the individual effect upon a disabled person of their disability. Some consequences may be obvious, such as an inability to walk unaided or inability to use certain work equipment. Others may not be obvious, for example, having to follow a restricted diet.” 29. Nor do I see any requirement for any special causation test. It is a question of fact and degree for an Employment Tribunal to decide whether something arises in consequence of disability. No doubt it is likely that, if there are many links in the chain of causation, an Employment Tribunal will conclude that one is not really the consequence of the other (see the discussion by Baroness Hale in her dissenting judgment in Malcolm at paragraphs 82 to 83). But the application of a straightforward statutory test can be left to the good sense of the Employment Tribunals without any particular gloss upon it. 30. There is one important point to bear in mind about the phrase “something arising in consequence of the disability”
. If this is to play its part in a finding of discrimination under section 15 it must be part of the employer’s reason for the unfavourable treatment. There is no point in identifying something which played no part in the employer’s reasoning. This leads on to the fourth element. 31. Fourthly, the unfavourable treatment must be because of the something arising in consequence of the disability. On this question the comments of Underhill J in Millar point the way. The question is whether the something arising in consequence of the disability operated on the mind of the putative discriminator, consciously or unconsciously, to a significant extent. The burden of proof provision contained in section 136 of the Equality Act may be in play. This provision, in the context of section 15, is also discussed in IPC v Millar (see paragraphs 23 and 31). 32. Finally there is the question of justification. Unfavourable treatment on the prescribed ground will not amount to discrimination if the putative discriminator can show that the treatment is a proportionate means of achieving a legitimate aim. In this case there is no challenge to the Employment Tribunal’s finding that the Respondent did not establish justification. 33. With this analysis in mind, I return again to the Employment Tribunal’s Reasons. Central to that reasoning is paragraph 25. In this paragraph the Employment Tribunal ran together its finding as to “something arising in consequence of disability” and “because of”. This is not inherently surprising. The two elements, though they may benefit in some cases from separate analysis, are very closely connected. 34. In the second sentence the Employment Tribunal makes reference to the Respondent’s need or requirement of a medical report as being related to the Claimant’s disability. It seems to me that Mr Williams’ submissions involved emphasising this sentence to the exclusion of the Employment Tribunal’s overall finding in paragraph 25. It is, however, always important to read the Reasons of an Employment Tribunal in the round. I read paragraph 25 in the following way. The “something arising in consequence of the Claimant’s disability” is the Claimant’s inability in the absence of a medical report to make a decision whether to agree a new working pattern or accept voluntary redundancy terms. This, it will be recalled, was not because the Claimant considered herself incapable of working the new pattern but because of the risk that the report which the Respondent had required might lead the Respondent to that conclusion, in which case she wished to be able to take voluntary redundancy. 35. This feature, the Claimant’s inability to make a decision on whether to agree a new working pattern, was the feature which, on the Employment Tribunal’s findings, tipped the scales and resulted in dismissal by Mr King on the day in question. In other words, it was in part because of this factor that she was dismissed at the time and in the manner she was. The Employment Tribunal went on to find that there was no justification for Mr King’s impatience. He could have implemented the working pattern and awaited the medical report. 36. I see no error of law in the Employment Tribunal’s reasoning. It was entitled to find that the Claimant was unable to decide about voluntary redundancy before she knew whether, by reason of the medical report the Respondent had commissioned, she was soon going to lose her job anyway. This medical report was required by the Respondent to assess the impact of the type 1 diabetes which was her disability and which might, depending on the medical report, have affected her continued employment. I see no legal impediment to the Employment Tribunal’s finding that her inability to decide about voluntary redundancy in the absence of this report was something arising in consequence of her disability. It follows that the appeal will be dismissed.