Causation tests in dismissal claims

A recent Employment Appeal Tribunal (EAT) decision reminds employers of the different tests which should be applied where a dismissal is alleged to be unfair and also discriminatory.

In unfair dismissal cases, a tribunal will look to find the ‘principal reason’ for dismissal and will then go on to assess the fairness of the dismissal in the context of that reason. However, when looking at whether the act of dismissal is discriminatory, a tribunal should look more widely at the surrounding circumstances and at all reasons influencing the dismissal - not just the ‘principal’ one.

In the case of Gibbons v Nationwide Building Society, Miss Gibbons was a disabled employee working at the Wandsworth branch of Nationwide Building Society. She was dismissed. The tribunal found that there were two reasons for her dismissal: the breakdown of her relationship with her colleagues at Wandsworth and the fact that, because of her disability, she asserted that she could not work anywhere other than the Wandsworth branch. The tribunal found that the principal reason for dismissal was the breakdown in her relationship with her colleagues.

They separately considered whether dismissing Miss Gibbons amounted to discrimination arising from disability or harassment. They held that it did not, because the principal reason for dismissal had been found to be the breakdown in her relationship with her colleagues, not something arising from her disability.

The EAT held that the tribunal had approached the discrimination claim incorrectly. It should not have limited itself to the principal reason for dismissal. It should have considered whether something arising in consequence of disability was a material contributing or effective cause of the dismissal and, for harassment, whether the decision to dismiss ‘related to’ her disability. These are both wider tests.   

Applying these tests would have brought in to play the secondary reason for dismissal which the tribunal had identified: the fact that Miss Gibbons said she could only work at the Wandsworth branch because of her disability. The tribunal had erred in taking no account of this when considering whether the dismissal was an act of harassment and/or amounted to discrimination arising from a disability.