By Jo Seery, Professional Support Lawyer
Background
Mr Saidali Khakimov, a senior manager at Amova Asset Management, was dismissed in January 2021 after almost two years’ absence with Functional Neurological Disorder (FND). He brought claims for discrimination arising from disability (s.15 EqA) and unfair dismissal. The Employment Tribunal rejected both. It found that his dismissal was not because of his difficulty “to think in multiple layers, dealing with unclear responsibilities and uncertainty of his allocated roles” ( the “something arising” from disability). The Tribunal also refused a late attempt, to re‑frame his claim that the reason for his dismissal was because the something arising from his disability, was in fact, his overall incapacity for work. In the alternative, it held that even if incapacity were accepted as something arising from his disability, dismissal was a proportionate means of achieving the legitimate aims of managing resources in an efficient and effective manner; employing employees in roles which they are capable of performing and providing efficient and effective service. Mr Khakimov appealed.
Discrimination arising from disability
- 15 of the Equality Act 2010 provides that it is unlawful for an employer to treat a disabled person unfavourably not because of that person’s disability but because of something arising from that person’s disability. An example would be where a disabled worker is dismissed because of absence related to their disability.
Key Issue
The appeal focused on whether the Tribunal had erred in law by failing to find that the reason for his dismissal was something arising from disability on the basis that there only needs to be a loose connection between the something arising from disability and the unfavourable treatment. Alternatively, the tribunal took a narrow view of the something arising from disability and should have considered a wider interpretation, namely that he was incapable of performing his role because of his disability and that was the reason for his dismissal.
Outcome
The EAT dismissed the appeal. It held that the Tribunal was entitled to rely on the something arising from disability as identified by Mr Khakimov and which had been expressly confirmed as being accurate at earlier case management hearings. The Tribunal had applied the correct Pnaiser causation test and which involves a subjective assessment of why the employer acted as they did. In doing so it was entitled to focus on the reasons of the dismissing officer and in doing so to conclude that the reason for his dismissal was not the cognitive difficulties identified as the “something arising” but because there was no prospect of his dismissal coming to an end and there was no evidential basis on which to consider any alternatives to dismissal . Its proportionality and unfair‑dismissal findings were properly reasoned.
Why this matters
The judgment reinforces the importance of establishing a causal connection between the something arising from disability and the unfavourable treatment. Examples where the unfavourable treatment is dismissal include where a worker is dismissed for absence related to disability or is unable to perform some or all of their job duties due to their disability. In that case, the issue will be whether the decision to dismiss is justified. In this case, the employer succeeded in showing that dismissal was justified because the disabled employee refused to provide medical evidence or engage with occupational health. As such, the decision was a proportionate means of achieving the legitimate aims.
