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HR Arising From Disability continued…

BY Heather Maclean
Employment Law & HR
BG Purple

Section 15 of the Equality Act 2010 introduced HR arising from disability, a concept which has proven to be notoriously difficult for some Tribunals to apply in the recent past.

The EAT, in the recent case of Basildon and Thurrock NHS Foundation Trust v Weerasinghe, attempted to shed some light on section 15 and the questions which a Tribunal ought to ask before arriving at their conclusions.

The Claimant in this case was employed as a surgeon by the Respondent Trust. He had suffered from a lung condition which rendered him disabled within the meaning of the 2010 Act. The Claimant was absent as a result of his condition, during which time he was able to attend three job interviews in Cork and two professional courses in Leiden and Germany. He had been unable, however, by reason of his ill-health, to meet with his Clinical Director when requested. The Claimant then requested to visit Sri Lanka as he felt his health would benefit from the warmer climate. After refusing this request, the Trust decided to instigate disciplinary proceedings against the Claimant as it was felt that he had been dishonest about his alleged inability to meet the Clinical Director. This was found to amount to Gross Misconduct and resulted in the Claimant’s dismissal. He submitted an unsuccessful appeal and then raised an ET claim, contending, amongst other things, that he had been discriminated against because of something arising in consequence of his disability.

This claim was upheld by the ET and the Trust appealed. In considering the appeal, the EAT found that two separate causative steps must be identified in order for a section 15 claim to be established. Firstly, the disability must have a consequence, and secondly, that consequence must have been the reason for unfavourable treatment. So for example, one consequence of a disability might be sickness absence. If an employee was to be denied a bonus because of that disability-related absence then they will have been treated unfavourably, contrary to section 15. Key here is the fact that the absence – the thing arising in consequence of the disability – resulted in the unfavourable treatment, as opposed to the disability itself.

In relation to the present case, the EAT found that whilst there may have been a need to go to Sri Lanka which resulted from the Claimant’s disability, there was no basis for finding that the request had been refused because of that need, nor was it refused because the request had been made. The refusal, and the subsequent disciplinary action, was because of the Respondent’s belief that the Claimant had misled them. The EAT therefore emphasized the importance of distinguishing between the context and the cause of the unfavourable treatment. This judgment will likely come as a relief to employers, as prior cases had set the bar for establishing section 15 claims particularly low. The fact that unfavourable treatment is loosely related to a person’s disability is no longer sufficient to show that the treatment was the result of something arising out of the person’s disability. Nevertheless, employers should continue to be wary before taking action against disabled employees as the financial and reputational consequences of a successful HR claim can be severe.

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