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04 December 2018

133: Discrimination arising from Disability claims: Causation Test must not be applied too strictly

Discrimination arising from disability occurs where an employer treats an employee unfavourably because of something arising in consequence of the employee’s disability (section 15(1) Equality Act 2010). Any unfavourable treatment can only be justified if the employer can show that it is a proportionate means of achieving a legitimate aim. The recent Scottish case of Sheikholeslami v University of Edinburgh has emphasised that ‘something arising in consequence of disability’ can involve a looser connection than a strict causation test.

Professor Sheikholeslami was recruited overseas by Edinburgh University as Chair of Chemical Process Engineering. She frequently raised concerns about her lack of technical support and delays in the promised refurbishment of her laboratory, and complained of unfair treatment when compared with her male colleague. From January 2010 until her dismissal, Professor Sheikholeslami was absent due to work-related stress and depression. In April 2010, she brought a grievance complaining of sex discrimination which was rejected. In April 2011, Professor Sheikholeslami asked to return to work within a different department as she felt that her former colleagues might be hostile towards her. This request was rejected and in April 2012, her employment was terminated because the University believed that her work permit would not be extended unless she returned to work in the department for which it had been granted.

Professor Sheikholeslami brought various claims in the Employment Tribunal, including a claim of discrimination arising from disability on the basis that her dismissal was due to her disability-related absence. The Tribunal held that since the University believed that her work permit could not be extended unless she returned to her existing post, she was dismissed because she was unwilling or unable to return to that role, not because of her absence. In the Tribunal’s view, there was no evidence that Professor Sheikholeslami’s dismissal was because of her disability, and her claim therefore failed.

Professor Sheikholeslami’s appeal was upheld by the Employment Appeal Tribunal (EAT), which found that the Employment Tribunal had applied a causation test that was too strict when it considered whether her absence or refusal to return to work had arisen because of her disability. The correct question to ask was whether the dismissal arose in consequence of her disability. This did not mean that it had to be caused by her disability, but could be a broader, looser connection involving several links and consequences. Here, Professor Sheikholeslami’s disability, which had been caused by her perceived discriminatory treatment, caused her to experience anxiety and stress, meaning that she could not face returning to a position where her colleagues might be hostile, leading to her refusal to return. These interlinked factors satisfied the broad test under section 15 of the Equality Act.

This case is a reminder that causation tests in disability discrimination claims vary according to which provision of the Equality Act is being applied. For example, in a reasonable adjustments claim, a comparative exercise is required. As this decision illustrates, in a discrimination arising from disability claim, there is a much broader focus. The causal link between the disability and the ‘something’ that arises in consequence of it can be loose and may involve overlapping facts and issues. Employers who are considering taking any action which could be in any way linked to an employee’s disability must therefore be able to justify that treatment.

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