HHJ Peter Clark examines the scope of section 15 Equality Act 2010 (discrimination arising from disability). The EAT addresses the issue of what degree of causal link is required between the unfavourable treatment and disability, and whether conscious motivation is required for a claim to succeed under s. 15.
Section 15 EqA 2010 has received little attention at appellate level. Section 15(1)(a) EqA 2010 provides that a person discriminates against a disabled person if they are treated “unfavourably because of something arising in consequence” of their disability.
The Explanatory Notes accompanying the Act make it clear that the provision was intended to make it easier for a disabled person to establish actionable detriment, but providing an opportunity for an employer to justify their actions (para 70).
Para 5.9 of the EHRC Code of Practice on Employment (2011) (“the EHRC Code”) explains that “the consequences of a disability include anything which is the result, effect or outcome of a disabled person’s disability. The consequences will be varied, and will depend on the individual effect upon a disabled person of their disability…”
The five Claimants successfully brought claims under s. 15 for non-payment of a corporate bonus. They were disabled, and each had been issued with a formal warning under the sickness absence procedure. As a consequence they were automatically disqualified from receiving a discretionary corporate bonus. In contrast, staff who received conduct warnings (below final written warnings) were not automatically excluded. When issuing conduct warnings, managers had discretion whether to withhold bonus. When the bonus was announced, HR personnel carried out the administrative task of seeing who had received sickness absence warnings, and confirmed that bonus would not be paid.
The ET found that in each case, the absences which resulted in the imposition of the warning were disability related. It had “no hesitation” that the unfavourable treatment was something arising in consequence of each Claimant’s disability.
It rejected the Respondent’s justification defence because, having decided to issue a warning for sick absence, the manager had no discretion to decide that the employee would not be excluded from receiving the bonus, unlike the position with a warning for conduct. No explanation for that anomaly was forthcoming. Secondly and it followed from that lack of discretion at any stage, no account could be taken of any improvement in performance post-warning and in circumstances where the legitimate aim of the bonus scheme was to reward good performance and attendance.
The EAT Proceedings
The Respondent appealed, asserting that the link between the disability and non-payment was too remote. The Claimants did not appeal against the warnings, and anyone who received a sickness absence warning (whether disabled or not) would be equally disqualified.
It also relied upon the fact that the HR personnel who were allocated an administrative task of checking who was issued with warnings were not consciously motivated to discriminate (relying upon a passage of Underhill J in IPC Media Ltd v Miller  IRLR 707). It further asserted that the ET erred in its approach to the justification defence and in respect of its approach to compensation.
The EAT Judgment
The EAT explored the causal link required between the disability and unfavourable treatment, observing that: “… Parliament has loosened the causative link between the disability and the unfavourable treatment complained of by the use of the deliciously vague formulation, “because of something arising in consequence of the [Claimant’s] disability”, bearing in mind that, in the context of discrimination law, “causation is a slippery word”. See Chief Constable of West Yorkshire Police v Khan  ICR 1065, paragraph 29, per Lord Nicholls.” (para 5)
On the facts, the link between the disability and unfavourable treatment was clear.
In Millar Underhill J said in relation to s. 15 “… We would only mention, because it is apposite to the issues on this appeal, that, as with other species of discrimination, an act or omission can occur 'because of' a proscribed factor as long as that factor operates on the mind of the putative discriminator (consciously or subconsciously) to a significant extent: see Nagarajan v London Regional Transport  IRLR 572, per Lord Nicholls at p.576…” (para 17) The Respondent relied upon this passage before the EAT, relying upon lack of conscious motivation on the part of HR staff to discriminate against the claimants.
The EAT accepted that Miller did not set out to provide a comprehensive analysis of the law. It was confined to the facts in issue in that case – namely, whether Ms O’Farrell was influenced not to allow the claimant to apply for two alternative posts because of her absences/disability (both past and prospective). Those facts naturally give rise to the question of conscious or subconscious motivation on the part of an individual. However, conscious/subconscious motivation is not always required where the reason for the detrimental treatment is not in dispute. Applying R (on the application of E) v Governors of the JFS IRLR 136 (paras 61-64) HHJ Peter Clark concluded:
… In the present case it was the very fact of those absences which led to the warning and thus disentitlement under the terms of the bonus scheme. That goes back to the “two different sorts of ‘why’ question” discussed by Baroness Hale in the JFS case  2 AC 728, paragraphs 61 to 64. It is the distinction between determining what caused the treatment in question (the relevant question) and the putative discriminator’s motive in acting as he did (the irrelevant question). In the present case the bonus was not paid because the Claimants had received a disability related sick absence warning; just as Mr James was refused free admission to the Eastleigh swimming pool because, as a man, he had not reached pensionable age whereas his similarly aged wife, a woman, had reached pensionable age and was entitled to free admission; see James v Eastleigh BC  AC 751… The motives of the HR staff member who carried out the administrative task of linking the warning to the non-payment of bonus was irrelevant to the true “reason why” enquiry in this case.
The EAT went on to reject the challenge to the findings on justification and remedy. The ET having directed itself correctly, was permitted to reach the conclusion that it did. How the ET resolves that balancing exercise is a matter for the ET absent any irrelevant factors being taken into account or relevant factors disregarded (para 25).
This “deliciously vague” provision will undoubtedly provide fertile ground for further disputes as its parameters are tested in future cases, particularly where the causal link between the disability and unfavourable treatment is less clear. Entering the gateway of section 15 should not prove too difficult for most claimants. The focus will therefore be on the lack of knowledge defence, and justifying the unfavourable treatment.
Stuart Brittenden was instructed by Thompsons Solicitors LLP, on behalf of the Respondents.
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