Comments on the case of Department of Work & Pensions v Elaine Robinson: UKEAT/0021/19/BA
Discrimination arising from a disability under section 15 of the Equality Act can at times appear startlingly wide. Unique to disability discrimination, it enhances the statutory rights available to disabled people by offering another avenue of complaint in addition to the more traditional forms of Equality Act protection, such as direct and indirect discrimination.
However, questions have arisen over the causative element of section 15 claims under the Equality Act. If the disabled employee suffers a detriment that they would not have suffered if they did not have a disability, is this sufficient? Or to put it another way, should we be using the ‘but for’ test when considering discrimination arising from a disability?
In the recent case of Department of Work & Pensions v Elaine Robinson  in the Employment Appeals Tribunal, Mr Justice Kerr confirmed that the answer to this question is a resounding ‘no’.
The facts of the case can be briefly summarised: Ms Robinson developed an eye condition, which caused her to suffer from migraines when viewing information on her computer screen in normal-size print. Ms Robinson’s employer attempted to install magnifying equipment on her computer but the software was initially incompatible with the employer’s IT systems and, when it did work, it required her to change screens frequently, exacerbating her migraines. When Ms Robinson raised a grievance, it was widely accepted that this was handled poorly and was not dealt with in a timely manner. Eventually, Ms Robinson went off sick and complained of disability discrimination under section 20 (failure to make reasonable adjustments) and section 15 (discrimination arising from a disability).
Mr Justice Kerr upheld the respondent’s appeal and concluded that the ‘but for’ test for section 15 claims was “impermissible”. Despite the attractive simplicity of the test, it does tend to oversimplify the criteria for this form of discrimination.
Section 15 of the Equality Act 2010 reads:
“15 Discrimination arising from disabilityE+W+S
- (1)A person (A) discriminates against a disabled person (B) if—
- A treats B unfavourably because [our emphasis] of something arising in consequence of B’s disability, and
- A cannot show that the treatment is a proportionate means of achieving a legitimate aim.”
Demonstrating the necessary link
What is important within the language of section 15 is the way it requires the less-favourable treatment to be motivated, consciously or subconsciously, by something arising out of a disability. In this case, the judge was not satisfied that the respondent treated the claimant unfavourably because of how her eye problem caused her migraines. The delays in installing the IT software and addressing the grievance were described as “bureaucratic and reprehensible”, and undoubtedly caused Ms Robinson a great deal of stress. However, it could not be said that these shortcomings were motivated by Ms Robinson’s migraines. A poorly handled grievance concerning discrimination is not de facto further discrimination.
The only treatment that could be said to be motivated by Ms Robinson’s migraines was moving her to a paper-based role. While such a move was arguably unfavourable, it was required to accommodate Ms Robinson’s eye problems and to find this to be in breach of section 15 would be inconsistent with the tribunal’s earlier rejection of her section 20 claim of failing to make reasonable adjustments.
This question of motivation makes section 15 claims more difficult – complainants need to establish that the unfavourable treatment was consciously or subconsciously motivated by a consequence of their disability and, at times, this will be very difficult.
This judgment provides some additional clarity on the scope of section 15 disability discrimination claims. In summary, discrimination arising from a disability is not as wide in scope as it first appears. The fact that the unfavourable treatment would not have occurred if the claimant did not have a disability is insufficient. This is the impermissible ‘but for’ test. Rather, a successful claimant must demonstrate that their unfavourable treatment was because of how their disability manifests itself or otherwise impacts on their work. In some cases, this will be obvious: for example, when disciplining an employee who is off sick because of a disability. But in other cases, complaints over an employer’s failings that are connected to – but not motivated by – the consequences of a disability are likely to be defeated.
Those acting for claimants will need to consider causation very carefully when pursuing discrimination arising from disability complaints – employment tribunals have now been reminded of the dangers of oversimplifying the statutory wording of section 15.