“Loose” Causation Test in Disability Discrimination Case

In a recent case of Hall v Chief Constable of West Yorkshire Police [2015] the Employment Appeals Tribunal (EAT) considered whether the dismissal of a disabled employee amounted to discrimination arising from disability.

While a claim for disability discrimination is made out if:
• 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 case went to the EAT and they set aside (put simply, disagreed with) the decision that the dismissal of a disabled employee for gross misconduct following disability-related sickness absence was not discrimination arising from disability under s15 of the Equality Act 2010.

The EAT confirmed that to establish a claim for discrimination arising from disability, there need only be a ‘loose’ causal link between the disability and any unfavourable treatment. This is a cause for concern for employers and here is why –

Ms Hall in this case, was employed as a Finance director for West Yorkshire Police; she worked there for 23 years. She suffered from stress, anxiety and depression, and from Supraventricular Tachycardia which caused her to take extended sickness absence from work. The employer questioned whether she was really sick due to hearsay that she worked in a pub on sick leave.

She was dismissed for gross misconduct, following notice of investigation, series of meetings which she was unable to attend due to heart surgery, non-attendance of a disciplinary hearing to which she was asked to attend.

The Tribunal initially hearing this case said that there was not enough of a causal link between the dismissal and the unfavourable treatment – when the case went up to the EAT however, they disagreed. While initially the motivation of the employer was taken into consideration (the genuine but wrong belief that the employee was falsely off sick and not disabled), the EAT held that this was irrelevant.

Given this case now sets precedent that provided an employee can show that the unfavourable treatment has been caused by an outcome or consequence of the claimant’s disability, extra care must be taken by employers, particularly when going ahead with disciplinary meetings, investigations in the absence of the sick employee. Even where an employer doubts the legitimacy of an employee’s sickness, clearly this case shows that it must be investigated fully and properly.

Employers do have some comfort in knowing that there is an opportunity to redress the balance and defend a claim by showing that the unfavourable treatment was a proportionate means of achieving a legitimate aim or that they did not know or could not reasonably have known that the employee was disabled; but the extent to which they can do so is a high hurdle to meet.
For further information, please contact Koichiro Nakada – Head of Japan Business Group (koichiro.nakada@lewissilkin.com) and Yoko Nakada - Senior Associate, Deputy Head of Japan Business Group (yoko.nakada@lewissilkin.com).
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