Loose causation test in disability discrimination

Under the Equality Act, discrimination “arising from a disability” occurs when an employer treats an employee unfavourably because of something arising in consequence of the employee’s disability, and it cannot establish that the treatment was a proportionate means of achieving a legitimate aim (known as justification).  In disability claims, no comparator is required.  It is a defence, however, if the employer did not know, or could not reasonably have been expected to know, that the employee had a disability.

The disability provisions of the Equality Act replace the old Disability Discrimination Act and in turn, discrimination arising from disability replaced the concept of disability-related discrimination.

The law was changed because it was extremely difficult for claimants to succeed in disability-related discrimination claims as they had to prove that their disability played a part in the employer’s reason for the discriminatory treatment.  In effect, this made disability-related discrimination claims almost indistinguishable from direct discrimination claims, and the Equality Act re-establishes a balance between enabling a disabled person to make out a case of experiencing a detriment which arises because of his/her disability and providing an opportunity for the employer to defend the treatment.

In a recent case, a disabled employee was dismissed, ostensibly for falsely claiming to be sick.  The allegations were vague, but the tribunal found that the employer’s motivation for the unfavourable treatment (the dismissal) was genuine, albeit wrong, because it believed that the employee was falsely claiming to be sick and the dismissal was not connected to her disability.

The employee appealed the decision.  The Employment Appeal Tribunal (“EAT”) said that the tribunal had erred in its interpretation of Section 15 of the Equality Act by imposing too stringent a causal link between the disability and the unfavourable treatment.  The EAT, in reaching its decision, took account of the legislative background and the case law, and it said that the tribunal had made three errors:

It appeared to consider that it was necessary for the employee’s disability to be the cause of the employer’s action in order for her claim to succeed.  The EAT said that the Equality Act loosened the causal connection which is required between disability and any unfavourable treatment.

The tribunal had contrasted the cause of the employer’s action and the background circumstances, and had ignored a third logical possibility, which was that all that needed to be established was that the disability had a “significant influence on the unfavourable treatment or a cause which is not the main or the sole cause, but is nonetheless an effective cause of the unfavourable treatment”.

The employment tribunal had also taken account of the employer’s motivation for the unfavourable treatment and it reiterated that the employer’s motivation for discriminatory treatment is irrelevant.

This case highlights the difference between a claim made for direct discrimination under Section 13 of the Equality Act and a claim made for discrimination arising from a disability under Section 15 of the Equality Act.  For direct discrimination, the less favourable treatment must be because of a protected characteristic; that means that the protected characteristic must be the employer’s conscious or subconscious reason for the less favourable treatment.  However, for an employee to succeed in a claim under Section 15 of the Equality Act, it will be sufficient to show that the unfavourable treatment has been caused by an outcome or consequence of the claimant’s disability.

Causation in discrimination claims is a notoriously difficult area and disability discrimination is no exception.  The phrase “because of something arising in consequence of the claimant’s disability” has been described as a phrase that is “deliciously vague”.  Whilst the language is intended to loosen the causative link between the disability and the unfavourable treatment, it is not an easy concept to understand.

Employers should be careful when dealing with employees who have potential disability discrimination claims.  It should be remembered that for an employee to establish a claim for discrimination arising from disability there only needs to be a loose causal connection between disability and the unfavourable treatment.