Labour & European Law Review Weekly Issue 448 02 December 2015
Section 15 of the Equality Act says that there is discrimination if an employer treats a disabled person unfavourably “because of something arising in consequence of the disabled person’s disability”. In Hall v Chief Constable of West Yorkshire Police the Employment Appeal Tribunal (EAT) held that tribunals should not impose too stringent a causal link between the disability and the unfavourable treatment.
Ms Hall, who had worked for West Yorkshire police as a finance officer since 1988, started suffering from stress in about 2000 which caused her to go off on sick leave for long periods. In 2010 she made a complaint about a colleague who was carrying out a review of the whole administration department but which was effectively ignored by her employer. Instead, following a report that she had been seen working in a pub whilst on sick leave, her employer started spying on her covertly.
Following heart surgery in October 2010, her employer wrote to her on 19 November saying she was expected back at work before the end of the month and should not take any more periods of sick leave for three months. She said that she was not well enough to return, nor to attend any meetings to deal with vague and “wholly unparticularised” disciplinary allegations which her employer had made in a notice of investigation which they had sent to her on 15 November.
An exchange of correspondence ensued over the next few months, in which her employer set various deadlines for a return to work which Ms Hall said she could not meet. She was then asked to attend a disciplinary hearing in April 2011 which she did not attend but which resulted in her dismissal on the ground of gross misconduct. Ms Hall claimed unfair dismissal and discrimination arising from disability.
The tribunal agreed that Ms Hall had been unfairly dismissed. Although her employer genuinely believed that she was falsely claiming to be sick, they did not have reasonable grounds to sustain that belief.
However, it dismissed her claim of disability discrimination on the ground that the disability had to be the cause of any action taken by the employer, not merely the background circumstance. In this case the motivation for the unfavourable treatment was not Ms Hall’s disability but “the genuine, albeit wrong, belief that Miss Hall in taking sick leave was falsely claiming to be sick”. The unfavourable treatment could not therefore be said to be “because of something arising in consequence of the disability”.
The EAT allowed the appeal on three grounds.
Firstly, the tribunal seemed to think it was necessary for the disability to be the cause of her employer’s action for the claim to succeed. Secondly, it made a contrast between the “cause of the action” and a “background circumstance”, thereby omitting a third logical possibility such as “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”. Thirdly, by referring to the motivation for the unfavourable treatment, it had asked the wrong question. Had the tribunal directed itself correctly, the only possible conclusion to which it could have come was that the necessary causal link between Ms Hall’s disability and the unfavourable treatment had been established.
The EAT concluded therefore that the tribunal had wrongly interpreted section 15 by imposing too stringent a causal link between the disability and the unfavourable treatment to which Ms Hall had been subjected and allowed the appeal.