The Equality Act 2010 was introduced to modernise and consolidate existing HR legislation, much of which had been around since the 1960’s and 70’s.
One new concept which the 2010 Act introduced was HR Arising from Disability. Under section 15 of the Act, a person discriminates if they treat another person unfavourably because of something arising in consequence of their disability. There have been a few cases decided under this section which have been relatively straightforward and uncontroversial. Recently however, judgments which have considered this point have introduced a new outlook on the issue which could present problems for some employers.
One first point to note is that unlike the majority of provisions in the Equality Act, section 15 refers to ‘unfavourable’ as opposed to ‘less favourable’ treatment. This means that there is no requirement for a comparator: it is irrelevant for an employer to show that a non-disabled employee would have been treated the same way. If a disabled person can show that they were treated unfavourably because of something arising in consequence of their disability, then they could bring a HR claim under section 15. It is possible for the employer to justify the unfavourable treatment however, by showing that is was a proportionate means of achieving a legitimate aim. Recent judgments suggest, however, that this is an exceptionally difficult obstacle for employers to overcome.
So what might does ‘arising in consequence of a disability’ mean? The EHRC Code gives a relatively straightforward example whereby an otherwise reasonable employee is disciplined for losing her temper because she is in severe pain caused by cancer treatment. The individual would not have been disciplined if it hadn’t been for her outburst and she would not have had the outburst had it not been for her disability. Therefore, the necessary link between the unfavourable treatment (disciplinary action) and the disability (cancer) has been established, allowing the individual to raise a claim for HR under section 15. The fairly recent case of Hall v Chief Constable of West Yorkshire Police considered whether the link between the Claimant’s disability and the unfavourable treatment had been established. On appeal, the EAT Judge stated that only a ‘loose causal link’ need be established between the disability and the unfavourable treatment. The disability might simply be a ‘significant influence’ or a ‘cause which is not the sole or main cause’ of the unfavourable treatment.
Therefore, the bar for proving HR arising from disability is particularly low. Unlike any other HR provision, for HR arising from disability to occur something arising in consequence of an employee’s disability – as distinct from the disability itself – must be the reason for the employer’s actions. It is therefore vital that employers take expert legal advice before taking action against disabled employees in particular, as they could find themselves liable for a disability HR claim under section 15.