Tom Kirk is instructed on behalf of the Department for Work and Pensions, by the Government Legal Department, in an appeal concerning s.15 of the Equality Act 2010 and the powers of the Employment Appeal Tribunal to substitute decisions rather than to remit matters to the Employment Tribunal under s.35 of the Employment Tribunals Act 1996.
The Appellant, a former employee of the DWP, challenges a decision of Kerr J in the EAT to substitute a finding that there was no discrimination under s.15. Kerr J found that the Tribunal had erred in applying an impermissible “but for” test for causation, applying Underhill LJ’s judgment in Dunn v Secretary of State for Justice  IRLR 298, and the findings made by the Tribunal were not capable of supporting a breach of s.15. The Court of Appeal is likely to hear submissions on, amongst other things, the availability of substitution as a disposal in cases in which an ET judgment lacks clarity, the test for causation under s.15 and the interrelationship between the duty to make reasonable adjustments under s.20 and objectively justifying discrimination arising from disability under s.15. The Court of Appeal will consider the appeal at a video hearing on 25 June 2020 before Lord Justice Bean, Lord Justice Haddon-Cave and Lady Justice Macur.
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