Disability Discrimination: Causation test for discrimination arising from a disability

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Disability Discrimination: Causation test for discrimination arising from a disability

Published 13 November 2018

The facts

Professor Sheikholeslami was the Professor and Chair of Chemical Process Engineering at Edinburgh University. She was diagnosed with work related stress and depression, and was then absent until her employment terminated. A few months after her sickness absence started, she raised a grievance complaining of sex discrimination. The University conducted a diversity review, which concluded that, although individuals were not judged because of “gender bias as such”, there were cultural problems within the School of Engineering. Professor Sheikholeslami asked to be moved out of the School of Engineering. However, the University wanted her to return to her existing laboratory, and the two parties reached an impasse.

The University’s HR department began considering options to extend Professor Sheikholeslami’s stay in the UK, since her work permit was due to expire. No acceptable options were identified, and the University dismissed her, saying that the reason for her dismissal was the expiry of her work permit.

Professor Sheikholeslami brought various claims against the University, including:

A claim that she had been disadvantaged by the University’s insistence that she return to work at the School of Engineering and the University had failed to make reasonable adjustments;

A claim of discrimination arising from disability, in that her dismissal flowed from her disability related absence.
The tribunal rejected both claims. In relation to the claim of discrimination arising from a disability, the tribunal commented that the University dismissed Professor Sheikholeslami because it believed that there was no possibility of her work permit being extended if she was not prepared to return to work in the position for which the permit had been granted. She was not dismissed because she was absent but because she was unwilling or unable to return to work in her existing post, and there was no causal connection between this refusal and her disability. Similarly, in relation to the reasonable adjustments claim, the tribunal did not accept that the requirement to return to the School of Engineering had put her at a disadvantage because of her disability. It was possible that Professor Sheikholeslami found it difficult to work at the School of Engineering because of colleagues’ hostility, but this would not be a reason caused by her disability.

Professor Sheikholeslami appealed to the EAT, which upheld her appeal. The judge held that the tribunal had failed to ask itself the critical question of whether Professor Sheikholeslami’s absence or refusal to return to work had arisen in “consequence of” her disability. Instead, it had considered the key question to be whether her refusal to return to her previous role was “because of her disability or because of some other reason”, such as her having been treated badly in the department. However, that was not a black and white question: both reasons might be relevant if her disability caused her to experience anxiety and stress and an inability to return to the place where she thought the mistreatment and hostility (which led to her refusal to return) was located. The tribunal had therefore adopted a causation test that was too strict.

The EAT also held that the tribunal had erred in adopting a causation test in the claim for reasonable adjustments. What is required is a comparison exercise to test whether the requirement to return to the School of Engineering had the effect of disadvantaging Professor Sheikholeslami more than trivially in comparison with those who did not have the disability.

What does this mean for employers?

This judgment is consistent with the courts’ direction of travel on the causal link between a disability and the “something” that arises in consequence of the disability. The correct test is whether the “something” arising from a disability had arisen in consequence of the disability, not whether it has arisen “because” of the disability. Employers who are contemplating taking action against an employee who may be disabled should carefully consider whether their disability might possibly have any bearing on the reason why the employer is contemplating taking action and, if this seems possible, be ready to justify the treatment.

Sheikholeslami v University of Edinburgh

Authors

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

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