How NOT to defend a s.15 claim for discrimination arising from a disability
Under section 15(1) of the Equality Act 2010, “discrimination arising from disability” occurs where both:
• A treats B unfavourably because of something arising in consequence of B’s disability.
• A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
When faced with a claim under section 15(1), many employers concentrate their defence on trying to demonstrate that the employee was not, in fact, treated unfavourably because of something arising in consequence of his or her disability but that the treatment afforded was for an entirely unrelated reason. However, this is a very dangerous approach because the bar for claimants establishing a causal link is a very low one. Furthermore, the “something” arising from the disability doesn’t even need to be the sole reason for the unfavourable treatment, as long as it is part of the reason.
Take for example the case of Risby v London Borough of Waltham Forest (“LBWF”). In this case, the EAT considered whether a tribunal was correct to dismiss claims for unfair dismissal and discrimination arising from disability when an employee was dismissed for misconduct after he became angry at his employer’s failure to accommodate his needs as a wheelchair user by putting on a workshop in a venue without disabled access. Mr Risby became so angry, in fact, that he shouted, “the council would not get away with this if they said that no f***ing n***ers were allowed to attend”. The Council then decided to dismiss Mr Risby for gross misconduct. One would have thought that the Council should have been able to get rid of that claim easily before it ended up in the ET. However, by arguing so strongly that the dismissal was not a consequence of Mr Risby’s disability, and not really addressing the issue of justification (when justification would seem so obvious), the case is still rumbling on.
The EAT reasoned that if Mr Risby had not been disabled by paraplegia, he would not have been angered by LBWF’s decision to hold the workshop in a venue he could not access. It concluded, “his misconduct was the product of indignation caused by that decision” and “his disability was an effective cause of that indignation and so of his conduct”.
Had LBWF concentrated its efforts on establishing that its actions were a “proportionate means of achieving a legitimate aim” (i.e. justified), rather than in disputing that Mr Risby’s conduct arose in consequence of his disability, it is quite likely that the case would not have even reached the employment tribunal in the first place, particularly if the LBWF were able to show that it had a zero tolerance approach generally to racist remarks and conduct.