“Because of” or “but for”?
The employment tribunal will now consider if disability discrimination has occurred “because of” a disability, rather than “but for” a disability.
A recent Court of Appeal decision considered an individual’s claim of discrimination for reasons arising from a disability under section 15 of the Equality Act 2010 (the “Act”) and a failure to make reasonable adjustments under section 20 of the Act.
Ms Robinson worked for the DWP as an administrator in the debt management department and suffered blurred vision as a result of hemiplegic migraines when viewing her computer screen. The DWP failed to provide her with screen magnification software with suitable resolution to allow her to see the screen properly, instead transferring her to alternative, paper-based, employment within the business. Initially the tribunal held that, although the DWP had made proportionate reasonable adjustments, Ms Robinson was treated in an unfavourable way due to the time taken by the DWP to deal with her grievances. However, this decision was appealed by the DWP and overturned by the Employment Appeal Tribunal (“EAT”) holding that this conclusion could not be supported by the facts.
The Court of Appeal considered the case, upholding the decision of the EAT that the facts found by the tribunal could not support findings of discrimination, particularly, the tribunal adopted an incorrect approach to causation under section 15 of the Act. For direct discrimination or discrimination for reasons arising from a disability under section 15 of the Act the tribunal is required to determine whether the less favourable treatment of the individual with a disability arose as a consequence of the individual’s disability. This means that the rationale of the alleged discriminator is relevant. The tribunal must prove that the discriminator treated the claimant less favourably “because of” their disability, it is not sufficient for the claimant to show that “but for” their disability they would not find themselves in the unfavourable situation complained of.
These findings were upheld in the current case with the Court of Appeal stating “in so far as the treatment was unfavourable at all, that was because the attempt to solve the problem failed, it took a long time and the claimant suffered stress as a result… there are no primary facts to connect the respondent’s conduct resulting in the delays with the consequences of the claimants disability.”
Ms Robinson had been moved to a paper role within DWP on the same pay grade, this was considered a reasonable and proportionate response to the difficulties suffered as a result of her disability.
The “but for” test has in fact been considered the incorrect test since Dunn v Secretary of State for Justice, but this case provides some additional clarity that, what is important, is the motivation and rationale behind the unfavourable treatment. It is not sufficient to make the argument that, but for the disability, the claimant would not find itself in the situation.