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07/07/2020

Court of Appeal re-examines test for causation under section 15 of the Equality Act 2010

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The Court of Appeal has delivered judgment in the case of Robinson v Department for Work and Pensions [2020] EWCA Civ 859, a decision which confirms that it is insufficient for a Claimant to argue, on a claim under section 15 of the Equality Act 2010, that “but for” their disability they would not have been put in a situation that led to unfavourable treatment. Rather, the focus needs to be on the reasons for the treatment itself. In so finding, the Court has approved of the obiter comments of Underhill LJ in Dunn v Secretary of State for Justice [2019] IRLR 298.

The Appellant had been employed by the DWP as an administrator. She suffered from blurred vision and her disability caused her to suffer migraines when using particular computer software. The Employment Tribunal found that the Respondent had made all possible reasonable adjustments and it found that “ZoomText”, the particular magnification software requested by the Appellant, would not have been effective in removing the disadvantage she suffered. However, it went on to find that the Appellant had been treated unfavourably in the way the Respondent delayed in dealing with her grievance about these adjustments and also criticised the delays in finding a technical solution to the Appellant’s problems. The Respondent argued on appeal to the EAT that the Tribunal had impermissibly applied a “but for” test for causation in upholding the section 15 claims and had also arrived at findings that were inconsistent with the finding that the Respondent had made all reasonable adjustments under section 20. The EAT agreed. Kerr J also found that the findings of fact made by the Tribunal permitted only one possible outcome – that the section 15 claims had to be dismissed. The EAT therefore substituted a finding that the Appellant had not been discriminated against.

In the Court of Appeal, the Appellant was granted permission to appeal on two grounds. (1) that Kerr J erred in substituting a finding that there was no discrimination arising from disability without properly applying the correct test for remittal; (2) that Kerr J erred in substituting a finding that there was no discrimination arising from disability by making decisions based on facts not found by the original ET.

The appeal was heard by Lady Justice Macur, Lord Justice Bean and Lord Justice Haddon-Cave on 25 June 2020 via Skype for Business. In the judgment of Bean LJ, with whom Macur LJ and Haddon-Cave LJ agreed, the Appellant’s appeal was dismissed.

Bean LJ agreed with Kerr J’s conclusion that the ET was bound by its findings of fact not only to reject the reasonable adjustments claim but also to reject the section 15 claim as well. Kerr J had applied the proper question to be asked pursuant to the case law on remission/submission since Jafri v Lincoln College [2014] ICR 920 which had indicated that a robust rather than timorous application of that test was permitted.

Having reviewed the judgment of Underhill LJ in Dunn, Bean LJ approved of that approach to applying the test for causation under s.15. His lordship helpfully summarised the position as follows at para 55:

Both s. 13 and s. 15 use the same phrase “because of”. One requires A to have treated B less favourably than a comparator would have been treated because of a protected characteristic (s.13), the other to have treated him unfavourably because of something arising in consequence of a disability (s.15). One difference between the sections is that s 13 explicitly involves a comparison between how the Claimant and other persons without the protected characteristic are treated – “less favourable treatment” – whereas s 15 refers only to “unfavourable treatment”. But both sections require the ET to ascertain whether the treatment (whether less favourable or unfavourable) was because of the protected characteristic and, as such, require a tribunal to look at the thought processes of the decision -maker(s) concerned.

Applying these principles to the alleged unfavourable treatment alleged by the Appellant, the Court of Appeal held that:

(a) The Appellant had been removed from her existing role and placed into another part of the same department in a new “paper-based” role. That was plainly reasonable and proportionate, given the difficulties being caused by the computer software, thereby enabling her to remain at work at the same pay grade. The ET also made findings rejecting a further allegation that the Respondent had failed to provide a workstation suitable for her skills and capacity. Given this and other findings of fact, the ET should have rejected this allegation of unfavourable treatment;

(b) The Tribunal’s conclusion that one of the Appellant’s grievances had not been dealt with in a timely manner could not support a finding of s. 15 discrimination. Bean LJ agreed that the ET’s judgment did not engage in the thought processes of those managers dealing with the Appellant’s grievances, to see whether there was any prima facie basis for concluding that they delayed resolution of the grievance “because of” something arising from the Appellant’s disability. Bean LJ remarked that in this respect the case was on all fours with Dunn;

(c) The Appellant’s allegation that the Respondent had treated her unfavourably by failing to implement the reasonable adjustments recommended by Occupational Health, namely installing ZoomText, was also bound to be rejected on the Tribunal’s own findings of fact. The ET’s finding that there was unfavourable treatment in this regard had been incompatible with their finding that the duty to make reasonable adjustment had been complied with because ZoomText was ultimately unsuitable: any screen magnification was going to require the Appellant to switch between areas of magnification which put her at risk of migraines.

Tom Kirk, who also appeared in the Court of Appeal in Dunn v Secretary of State for Justice, represented the successful Respondent. He was instructed by the Government Legal Department. Click here for a full copy of the Court of Appeal’s judgment.

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