Section 15 of the Equality Act states that it is discrimination to treat a disabled person unfavourably “because of” something arising in consequence of their disability. In Robinson v Department of Work and Pensions (DWP) the Court of Appeal has confirmed that claimants cannot therefore argue in a section 15 claim that “but for” their disability, they would not be in the situation that led to the unfavourable treatment.
Ms Robinson worked for the DWP as an administrative officer without any problems from 1992 to 2014 when her role became more computer-based and she had to use a particular type of software.
In November 2014, she suffered what was later diagnosed as a hemiplegic migraine along with blurred vision. Following a risk assessment, it was recommended that she use screen magnification software. However, this resulted in a series of technical problems which caused Ms Robinson considerable stress and resulted in her taking periods of sick leave.
In March 2016 she lodged a grievance about the delay in resolving the technical difficulties, which was upheld. Around the same time, she agreed to work in a paper-based role on the same grade in the hope that this would be temporary until the technical difficulties were resolved. She then lodged a second grievance seeking an apology and compensation. She received an apology but no compensation.
In August 2017, she lodged a tribunal claim against her employer for “discrimination arising from disability” under section 15 of the Equality Act 2010 and failure to make reasonable adjustments under section 20 of the Act.
Section 15(1)(a) states that it is discrimination for a person (A) to treat a disabled person (B) unfavourably “because of” something arising in consequence of B's disability.
Tribunal and EAT decisions
The tribunal agreed with Ms Robinson that she had been unfavourably treated, not least because of the delays involved in dealing with her second grievance as well as delays in resolving the technical difficulties.
However, it rejected the claim that the DWP had failed to make reasonable adjustments, holding that the department had done all that it could within the limitations of the available software to meet her needs.
The EAT upheld the DWP’s appeal finding that the way Ms Robinson had been treated could not have been motivated by the consequences of her disability. Her treatment had only been unfavourable in the sense that the attempts made by the DWP to solve the problem failed and she had suffered as a result. The EAT substituted a finding that she had not been discriminated against. Ms Robinson appealed.
Decision of Court of Appeal
Dismissing the appeal and approving the approach to the issue of causation in Dunn v Secretary of State for Justice (weekly LELR 594), the Court held that for a section 15 claim to succeed, it was incumbent on tribunals to examine the conscious and/or unconscious thought processes of the relevant decision-makers to decide whether the unfavourable treatment was “because of” something arising from disability.
It was not enough for claimants such as Ms Robinson to argue that “but for” their disability, they would not be in the unfavourable situation complained of. Although Ms Robinson had not been well treated by the DWP after her hemiplegic migraine, and her sense of grievance was understandable, in the absence of any finding of fact by the tribunal that the delay in dealing with her grievance was for a reason arising from her disability it was bound to reject her section 15 claim.