The Equality Act states that employers have to make reasonable adjustments for employees who are disabled in certain circumstances. In Lucas v Cosmeceuticals Ltd, the EAT upheld the tribunal’s decision that, as there was no link between Ms Lucas’ disability and her dismissal, the company had not failed in its duty to make reasonable adjustments.
Ms Lucas, who has multiple sclerosis, started work for Cosmeceuticals (who knew about her condition from the outset) on 13 March 2017. She was absent from work on a single occasion on 10 and 11 May. She was dismissed on 16 August 2017.
In January 2018, she lodged tribunal proceedings under sections 15 and 21 of the Equality Act, among other things. Specifically, she argued that she was dismissed because she had been absent from work in May; because she had said she was unhappy about having to travel from Dunfermline to Cambridge and back in June 2017 to pick up a company vehicle; and because she had asked for time off to attend medical appointments in August and September 2017.
By applying the following provisions, criteria or practices (PCPs): 1) to be mainly field-based; 2) to carry out three client appointments per day; 3) to meet set targets; and 4) to make long drives, Ms Lucas argued that the company had put her at a substantial disadvantage compared to non-disabled people.
For its part, the company said that she was dismissed because she had failed to meet her monthly sales targets.
Section 15 states that it is discrimination to treat a disabled person unfavourably because of “something arising in consequence of” their disability, unless the discriminatory treatment can be justified as a proportionate means of achieving a legitimate aim.
Section 21 states that it is discrimination if an employer fails to comply with certain requirements set out in section 20. One of these states that if a PCP puts a disabled person at a substantial disadvantage in comparison to someone who is not disabled, the employer must take reasonable steps to avoid the disadvantage.
Dismissing her section 15 claim, the tribunal found no evidence of any link between Ms Lucas’ disability and her treatment. Instead, it held that the reason for her dismissal (and the cause of her unfavourable treatment) was her poor sales performance.
As for the section 21 claim, the tribunal found that none of the PCPs she had listed were causally linked to her disability, or to the way she had been treated. Nor did it find any evidence of a link between the reason for her dismissal and her disability.
Ms Lucas appealed, arguing that the tribunal had failed to give adequate reasons for its decision on her section 15 claim and/or it had mis-applied the burden of proof provisions under section 136 of the Equality Act. She also argued, in relation to the section 21 claim, that the tribunal had misconstrued PCPs 1 and 2, had mis-applied the burden of proof and produced defective reasons in relation to PCP 4 by failing to consider the particular adjustment she had put forward, which was that someone else should have been asked to drive the car from Cambridge to Dunfermline.
Dismissing the appeal, the EAT held that where a tribunal has found “no evidence” on any material issue (including causation) it does not have to consider the burden of proof provisions of section 136 as there was no basis for doing so.
As for the section 15 claim, the EAT held that the tribunal’s reasons were clearly expressed, needed no further explanation and disclosed no error of law. Likewise, the tribunal had not made any of the errors claimed by Ms Lucas in relation to the section 21 claim.
It seems that the downfall for this claimant’s case was the failure to evidence that her ability to meet sales target was negatively affected by her disability. This meant that the employment tribunal could only reach the conclusion that (1) the unfavourable treatment did not arise from something in consequence of her disability to succeed with the section 15 claim and (2), that her impairment did not cause her a substantial disadvantage, in comparison to persons without her disability, meaning that the employer was not under a duty to make reasonable adjustments to the PCP.