Tribunals deciding whether unfavourable treatment was ‘because of’ something arising from disability under s.15 EqA should normally look at the thought processes of the employer.
S.15 Equality Act (discrimination arising from disability) may apply if an employer treats a worker unfavourably because of something arising in consequence of the worker’s disability.
In Robinson v Department for Work and Pensions www.bailii.org/ew/cases/EWCA/Civ/2020/859.html the Court of Appeal had to consider what ‘because of’ means here. The court’s conclusion was that the tribunal normally has to look at the employer’s thought processes, conscious or unconscious.
The claimant in this case developed blurred vision in one eye, meaning she could not use Debt Manager software on her computer. Attempts to use screen magnification software to solve the problem were unsuccessful. The employment tribunal rejected her claim for failure to make reasonable adjustments, given that this was not a practicable solution. That was not appealed.
However the employment tribunal upheld various claims under s.15 EqA, for example that the employer had failed to deal in a timely fashion with one of her grievances about not implementing screen magnification software, and had failed to protect her from stress.
The Court of Appeal overturned the tribunal’s decision on s.15. The employment tribunal had not engaged with the employer’s thought processes, and there was no finding that eg managers delayed resolution of her grievance because of something arising from her disability. The delay was deplorable but not discriminatory.
Note: This is not saying one looks at the employer’s thought processes in deciding whether the reason for the unfavourable treatment ‘arose in consequence of’ the claimant’s disability.