The introduction of the Equality Act 2010 not only brought together existing protections against discrimination, it also introduced new ones. One of the new elements was specifically drafted to close a loophole which, in certain circumstances, meant that employers could still dismiss employees because of their disability. The new provision – “discrimination arising from a disability” – created much wider considerations for employers.

Background

Although a non-employment court case, it was the case of Malcolm v Lewisham Borough Council which highlighted the loophole in pre-Equality Act laws. Mr Malcolm had sublet a council property without the council’s consent and a possession order was being sought. Malcolm’s defence was based on the fact he had schizophrenia; he claimed he would not have acted in this way if he did not suffer from the condition. This argument was unsuccessful, however, because the Court decided that the council’s proceedings were based on the fact that he has sublet the property, not because he had a disability.

Equality Act Provision

Section 15 of the Equality Act 2010 was inserted to close the ‘Malcolm gap’ and provides that individuals are protected against discrimination for something that happens in ‘consequence’ of their disability. Under this provision, there need be no direct link between the disability and the employer’s actions but there does need to be a ‘causal link’. In effect, the disability must be a significant influence on the employer’s actions and not just a mere background factor.

Two Cases: Two Opposing Decisions

In Risby v London Borough of Waltham Forest, Mr Risby was a paraplegic. He was invited to a team meeting which was to be held, as he subsequently discovered, at a location without wheelchair access. This made him angry and he lost his temper, using offensive and racist language towards management. When he was dismissed because of his outburst, he claimed that his behaviour was in consequence of his disability.

Result: The Employment Appeal Tribunal agreed with him, saying that his outburst was a cause of his anger. Disability was not a direct cause of his behaviour, but it was cause enough.

In the recent Charlesworth v Dransfields Engineering Services, Mr Charlesworth had a period of two months’ sickness absence due to cancer. During his absence, the employer recognised it could manage without him, and he was subsequently made redundant. He claimed discrimination arising from a disability; that the absence which gave rise to the realisation was a consequence of his condition.

Result: The Employment Appeal Tribunal found that there was not a sufficient link between the disability and the decision to make Charlesworth redundant. There was a link between the disability and the redundancy but the realisation that the employer could manage without him was a decision which could reasonably have been made under different circumstances. The disability provided the context of the decision; it was not the cause.

Summary

  • It appears, from the above case examples, that the exact circumstances of each situation will have to be analysed to determine the extent of the link between the disability and the employer’s actions;
  • Context is not enough to provide the employee with protection;
  • Employers can defend discrimination arising from a disability by objectively justifying the actions and so the reason for the actions, and the methods adopted to achieve it, are key. 

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