18 September 2015 #Employment
Employers should sit up and take note of the recent decision in Hall v Chief Constable of West Yorkshire Police, which involved a claim of discrimination arising from disability.
The case, which is fairly technical, concerned Miss Hall, a finance officer, who suffered from stress and anxiety and had been diagnosed with Supraventricular Tachycardia (‘SVT’). The facts are detailed but in summary Miss Hall went off sick with SVT related stress after a poor review of her department at work which she found unfair. Her employer arranged covert surveillance after reports suggested her sickness was not genuine and instigated a disciplinary investigation with vague allegations which resulted in her dismissal for misconduct. During this period, Miss Hall had also undergone heart surgery, her employer sought to require Miss Hall to return to work and have no further sickness absence for a 3 month period, and warned her she was at risk of redundancy.
The tribunal found various failings in the disciplinary process and upheld Miss Hall’s unfair dismissal claim. It found 10 instances of unfavourable treatment, including the dismissal but did not uphold the disability arising from discrimination claim on the basis that disability has to be the cause of the Respondent’s action (not merely the background circumstance) and in this case the tribunal found the cause to be the employers genuine, albeit mistaken, belief that Miss Hall was falsely claiming to be sick.
This decision was overturned by the Employment Appeal Tribunal on the basis that this approach to causation was too strict. It was not necessary for the employee’s disability to be the cause of the unfavourable treatment and the employer’s motivation for the treatment was irrelevant. The legal test was looser and simply required the disability to be ‘a significant influence on the unfavourable treatment, or a cause which is not the main or the sole cause, but is nonetheless an effective cause of the unfavourable treatment’. In summary, her claim succeeded.
Given this relatively low threshold, it seems that other factors will be the main battle ground for discrimination arising from disability claims, such as whether the employee is disabled, whether the employer was aware of the disability and whether the employer can justify its treatment by showing it was a proportionate means of achieving a legitimate aim.