Disabled employees are protected from being treated unfavourably by their employer for a reason arising from their disability. Unfavourable treatment will amount to discrimination unless it can be objectively justified. For example, if an employee takes sick leave due to their disability, they shouldn’t be treated unfairly because of that leave, unless the employer can justify their actions.
The situation is not always clear cut. In the case of Bodis v Lindfield Christian Care Home, the Employment Appeal Tribunal had to decide if an employer’s decision, influenced only slightly by something arising from the employee’s disability, could still be considered discrimination.
In this case, the Claimant was disabled. She suffered from depression and anxiety. After an investigation, the employer found her responsible for several incidents, such as drawing on photos of female staff, spilling reed diffusers, and turning off the boiler. They dismissed her. The Claimant’s short and evasive answers at interview were acknowledged to have been part of the reason that the matter went forward to disciplinary.
The original tribunal dismissed her claims of unfair dismissal and discrimination arising from a disability. The tribunal accepted that the manner in which the Claimant answered questions in the investigation meeting arose in consequence of her disability. They also found that it had influenced the decision to take the matter to a disciplinary hearing. However, as it had only been a ‘trivial’ influence and not the ‘effective cause’, the tribunal held that the decision did not ‘arise from’ the conduct.
The EAT disagreed. To establish liability for discrimination arising from a disability, the ‘something arising’ can be a minor component of the reason for the treatment provided it is an ‘effective cause’. Here it was clearly one of the causes. The fact that it was a minor one did not mean that the claim was not made out. However, the EAT went on to find that the appeal still failed as the tribunal had made it clear that the Respondent’s decision to take the matter to disciplinary was justified in any event.
Find out how we can help. Our partner, Jon Dunkley, heads the Wollens specialist Employment Department. Contact him today for an informal chat, without obligation on 01271 342268 or via email at [email protected].
