Scottish Employment Appeal Tribunal Clarifies Test Under Equality Act, Section 15
The recent appeal case of Sheikholeslami v University of Edinburgh is a reminder to employers that even if they believe they are acting in a way unconnected with an employee’s disability, the law may analyse the circumstances and find sufficient connection for the Claimant to succeed in a claim of discrimination arising from disability (s15 Equality Act). Although it appears that the threshold for employees to establish such a connection is relatively low, it must always be remembered that a justification defence is available. The fact that an employee can point to a link between their disability and how they were treated by their employer does not guarantee that their claim will succeed.
The background to the case
The Claimant was employed by the Defendant in 2007 as Professor and Chair of Chemical Process Engineering. She suffered from severe work-related stress and depression and was absent from her position from January 2010 until her contract was terminated in April 2012.
In 2010, the Claimant raised a grievance for sexual discrimination. Following a diversity review, it was found employees were not judged because of ‘gender bias as such’ but there were cultural problems in the School of Engineering. The Claimant told the Defendant she wished to be transferred from the School of Engineering, but the Defendant wanted her to remain. No agreement could be reached, and in 2012 the Claimant was dismissed on the grounds her work permit had expired.
Various claims were brought by the Professor, including that the Defendant had not made reasonable adjustments, disadvantaging her by insisting she return to work at the School of Engineering; and a claim of discrimination arising from disability under s15 of the Equality Act 2010, in that her dismissal flowed from her disability-related absence.
Her claim was rejected in the Employment Tribunal. However, this was overturned on appeal. The Employment Appeal Tribunal (EAT) stated the lower Tribunal erred when it found no link between the Claimant’s disability and her absence and subsequent refusal to return to work at the School of Engineering. The causation test applied by the Employment Tribunal, as to whether the Claimant was mistreated due to a consequence of her disability, was too strict. The EAT deemed the test to be: did the Claimant’s refusal to return to work arise “in consequence of” her disability. This is a looser test than one of causation.
The EAT also stated the Tribunal had applied the wrong test in regard to the reasonable adjustment claims. The Claimant did not need to show the PCP disadvantaged her ‘because of her disability’, as there is no strict causation test contained in the Equality Act s 20(3). Instead, the Tribunal should have considered whether, when compared with someone who does not have a disability, the PCP had the effect of disadvantaging the Claimant.
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