Section 15 of the Equality Act 2010 outlaws unfavourable treatment because of ‘something’ that arises in consequence of an individual’s disability.
This is funny wording that isn’t immediately clear. Its purpose is to protect individuals who have not obviously been discriminated against because of a disability but have suffered unfavourable treatment because of something that arises in consequence of their disability. For example, if you are asthmatic (to the extent that it is a disability) and are dismissed for raising a grievance about unsafe air quality, you have suffered less than favourable treatment (dismissal) because of something (your raising of a grievance) that arose in consequence of your disability (your asthma). Subject to the Respondent not having a defence (that their actions were a proportionate means of achieving a legitimate aim), your claim will succeed.
This case concerned the “something” element of Section 15. The Claimant worked for the Respondent. In 2016, he was given a final warning for aggressive behaviour. He was subsequently diagnosed with anxiety and depression. His doctor recommended a ‘therapeutic trip’. He chose to go to Pakistan (where he is originally from). He went. There was a dispute about whether he sought permission to do this. He says he did. The Respondent says otherwise. Acting on their beliefs, the Respondent initiated a disciplinary process, which resulted in his dismissal. The Claimant appealed, unsuccessfully. A claim to the tribunal was lodged, alleging Section 15 discrimination and unfair dismissal (only the former will be dealt with here).
The ET found in his favour. They said that he was treated unfavourably (dismissed) because of something (his trip to Pakistan) that arose in consequence of his disability (his anxiety and depression). The Respondent appealed. They said that he was not dismissed because of his trip to Pakistan, but rather because he did not have permission to go to Pakistan. Therefore, on the Respondent’s terms, the Claimant had suffered unfavourable treatment (dismissal) because of something (failing to inform his employer that he was going to Pakistan) which did not arise in consequence of his disability (because failing to tell your employer that you are going away on a therapeutic break is not something that arises in consequence of a disability, unless you have an impairment which makes you very forgetful. In other words, failing to tell your employer that you are taking time off work is not something that arises in consequence of anxiety and depression, at least this argument was not put the ET).
The EAT found that the ET failed to consider this point. Therefore, the case has been remitted to tribunal. In our view, the Respondent is probably right. It seems that the Claimant was not treated unfavourably because of something arising in consequence of disability, but because of something (failing to tell his employer that he was going away) that arose completely independently of his disability.
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