Disability Discrimination is Never Black and White

Tribunal decision overturned by EAT who confirm disability causation tests need careful thought

When it comes to discrimination arising from disability in the workplace, the situation can be nuanced. This recent case highlights the caution employers need to take when dismissing someone for something caused by their disability. The Scottish EAT confirmed that ‘something arising in consequence of disability’ is not limited to strict causation – it can include a more complex chain of events.

The Equality Act 2010 protects employees from being discriminated against at work due to a disability. The employer must also make all adjustments that are reasonable to ensure workers with disabilities aren’t substantially disadvantaged while doing their jobs.

Sheikholeslami v University of Edinburgh

In the case of Sheikholeslami v University of Edinburgh, the employment tribunal made errors. The employee, in this case, was diagnosed with work-related stress and depression and was absent from work. After refusing to return to work in her old laboratory – where she had raised a grievance about sex discrimination – she was dismissed by the university. They put her dismissal down to her work permit expiring, but the university would have extended it if she’d returned on their terms.

The employment tribunal rejected the employees’ claims, which included:

• That her dismissal arose from her disability-related absence; and
• That the university hadn’t made reasonable adjustments for her

The tribunal found that her unwillingness to work at her existing laboratory was not directly caused by her disability, but rather by her unwillingness to return to work following her grievance. However, the EAT allowed the employee’s appeal and found that the tribunal had been too strict in their causation test. The EAT concluded that her refusal arose from a series of linked events – such as the relationship breakdown with her colleagues – which were a ‘consequence of’ her disability.

In short, the situation was a lot more complicated than the tribunal made out. This case shows that discrimination arising from disability can be a ‘looser connection’ rather than a one-step cause.

As for the failure to make reasonable adjustments, her employer had an obligation to remove any substantial disadvantage caused by her disability, but she did not need to show that her disability directly placed her at a disadvantage if she returned to her existing role. There should have been a comparison exercise of whether this would disadvantage her more than trivially in comparison with others without a disability.

When can discrimination arising from disability be justified?

Employers should take note of this case when reviewing decisions that they take about people with a disability. The effects of someone’s disability are not always obvious, so subtle care is needed.

However, at the same time, disabled employees are not untouchable and actions that would otherwise be discrimination can be justified if the employer can show “a proportionate means of achieving a legitimate aim”. The legitimate aim must be a genuine reason, such as running an efficient service, or the health and safety of individuals. Employers should then consider whether there is a more proportionate way of achieving the same aim before deciding to take action which could treat disabled workers less favourably, due to something arising (even indirectly) from a disability.

How can Freeths help your business?

If the Sheikholeslami v University of Edinburgh case has made you think about the way your organisation deals with disabled employees, you may want to speak to us. Freeths’ experienced Employment lawyers can help you review your practices to minimise the risk of being on the wrong side of disability discrimination allegations.

Contact Tom Draper to find out more, or sign up to our Employment Law newsletter.