Under section 15 of the Equality Act 2010, it is discriminatory for an employer to treat a worker unfavourably “because of something arising in consequence of [their] disability” unless the employer can justify it. In Madani Schools Federation v Uddin, the Employment Appeal Tribunal (EAT) held that tribunals must look carefully at each complaint and then determine what the “something” was; and whether it arose “in consequence of” their disability.
Mr Uddin, a PE teacher, suffered from anxiety and depression and was absent on sick leave for several months at a time. He had also taken out a grievance against his two managers which was rejected. He appealed against that decision but the appeal was never heard.
As part of a phased return to work after one of the periods of sick leave, the school suggested that he work as an assistant in literacy and numeracy rather than returning to the PE department.
Mr Uddin was not happy with the suggestion and repeatedly e-mailed the head teacher asking for his appeal to be heard and to be allowed to return to the PE department. The impasse continued until April 2013 when Mr Uddin was suspended from work on full pay. He remained on suspension until his dismissal almost a year later on 5 April 2014.
Mr Uddin claimed unfair dismissal and unfavourable treatment on a number of grounds, including the school’s failure to deal with his appeal, being required to undertake duties in another department, his prolonged suspension and finally his dismissal.
The tribunal held that the dismissal was unfair as the reason was his failure to comply with the requirement to teach literacy and numeracy as part of a phased return. As he was only required to teach PE under his contract, the school had no right to request that he work in another department and could not provide a credible explanation as to why it had insisted on him doing so.
It also upheld five of his complaints of unfavourable treatment because of “something arising in consequence of his disability”. The school appealed against the discrimination finding.
The EAT allowed the appeal on the basis that the tribunal had applied the wrong test. It had taken a broad brush approach and essentially upheld the claims because there was some connection between his disability and the treatment. Instead the tribunal should have followed the proper approach to section 15 claims, as set out in Pnaiser v NHS England.
This states that tribunals must consider two questions:
- Having identified the unfavourable treatment by the school, the tribunal should then have decided what caused it. In other words, what the “something” was. The focus is on the reason in the mind of the school. It does not have to be the sole or main cause of the unfavourable treatment but it must have a significant influence on it.
- The tribunal should then have considered whether it was something “arising in consequence of Mr Uddin’s disability”. That expression could describe “a range of causal links” and “may include more than one link” but the more links in the chain between the “something” and the disability the harder it is likely to be to establish the requisite connection as a matter of fact. The question is one of objective fact to be robustly assessed by the tribunal in each case.
As the tribunal in this case had failed to ask these questions and had looked at the five complaints together, the EAT remitted the matter back to a fresh employment tribunal to consider whether the school had, in fact, treated Mr Uddin unfavourably “because of something arising in consequence of his disability”.
The case illustrates the technical difficulties claimants can face in winning a section 15 claim. Simply showing a link between the disability and the unfavourable treatment is not sufficient. While the requirement to prove causation is not as onerous as in a direct discrimination claim, the tribunal is still required to analyse, for each complaint, both the reason for the treatment and whether the reason arose in consequence of disability.