Causation in disability discrimination

21 November 2018

In Sheikholeslami v University of Edinburgh, the employee went off sick after being diagnosed with stress and depression linked to workplace events.

She raised a grievance whilst off sick complaining of sex discrimination which resulted in colleagues being told not to contact her. She requested a departmental move which was refused. She was then dismissed when she refused to return to work in the same department. The employer said the reason for the dismissal was her work permit expiring. The employee brought claims for failure to make reasonable adjustments and discrimination arising from disability in relation to her dismissal. She lost at the employment tribunal and appealed.

In relation to her reasonable adjustments claim, the EAT looked at whether the duty to make reasonable adjustments applied. They decided that the requirement to return to the same department placed the employee at a substantial disadvantage compared to other employees. Non-disabled people who could attend work would not have been at risk of dismissal. The requirement to return to a hostile environment following a discrimination grievance would bite more harshly on someone with a mental impairment than someone without that disability.

The EAT then looked at whether there had been unfavourable treatment arising in consequence of her disability. The employment tribunal found that the employee's refusal to return to her current department was because of her grievance and not her disability. The EAT said the tribunal had applied the wrong test. The test was whether her refusal to return was a consequence of her disability, not because of it. The EAT said that the employee's refusal related to several issues, including her relationship issues with colleagues, but they were also a consequence of her disability.

Employers should be aware that dealing with disabled employees is rarely clear cut. Caution should be exercised to ensure the correct tests are applied.

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