Causal Link in Disability Claims

The Employment Appeal Tribunal (EAT) has examined the link required between an employee’s conduct and their disability in the context for a claim for discrimination arising from disability.

Under the Equality Act 2010, discrimination due to disability occurs where A treats B unfavourably because 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.

The EHRC Employment Statutory Code of Practice provides an example of a successful discrimination claim: a woman losing her temper at work, the behaviour being out of character and as a result of severe pain caused by cancer (an illness which had been brought to the employer’s attention).  Disciplinary action in these circumstances would be unfavourable treatment as the treatment would be because of something arising from the disability and there would be a connection between the loss of temper and the disability.

Previous case law held that there only needs to be a loose causal link between the action arising in consequence of the disability and the unfavourable treatment. A two stage test had been established: was the action arising caused by, or a consequence of, the disability? Secondly, did the action cause the unfavourable treatment?

The employee in the case in question was dismissed due to his misconduct. The employer had arranged workshops for managers, including the employee, at a private venue with disabled access. It was, however, later decided that the workshop should be held in the basement of one of the employer’s buildings to save costs. This location did not have wheelchair access. The employee lost his temper and was upset and angry, shouting and using racist language. The employee was suspended and was summarily dismissed after a disciplinary investigation and hearing.

The employee brought claims for unfair dismissal and discrimination in the employment tribunal, which held that there was no direct link between his behaviour and his disability, dismissing the claims.

The employee appealed to the EAT which noted that, whilst the short tempered nature of the employee was unrelated to his disability, the reason for the situation arising was in fact the employee’s disability. In other words, had the employee not been disabled, he would not have had reason to lose his temper. The only requirement in terms of the loose causation test was that the employee’s conduct had to arise in consequence of his disability.  The tribunal was incorrect to find that the conduct of the employee was unrelated to his disability and the matter was remitted back to the tribunal for hearing.

The case in question appears to loosen the causal link between the disability and something arising due to the disability in the Equality Act. The facts of the case seem to take the test one step further than the example in the EHRC Code and employers should therefore be mindful of the impact of any disability might have when assessing employee behaviour.