IPC Media Ltd v Millar (Disability Discrimination : Section 15) (Rev 1)

For discrimination arising from disability under section 15 of the Equality Act 2010, the relevant consequence of disability must have operated, consciously or subconsciously, on the mind of the person responsible for the unfavourable treatment. A claimant relying on section 136 must establish facts capable of supporting that inference. Where the alleged decision-maker had no evidenced knowledge of the claimant’s absence history, the burden of proof does not shift and a finding of discriminatory motivation cannot stand.

Direct discrimination and section 15 discrimination are distinct. A finding that disability itself was not the reason for treatment does not logically preclude a finding that disability-related absence was the reason.

The claimant, a journalist with osteoarthritis, was dismissed in a restructuring and redundancy exercise. The Employment Tribunal held that she had been unfairly dismissed because she was not considered for two potentially suitable alternative posts. It dismissed her direct disability discrimination claim but upheld her claim under section 15 of the Equality Act 2010.

The Tribunal inferred that the failure to give her an opportunity to apply for the posts was because of past and anticipated absence arising from her disability. The employer appealed only against that disability-discrimination finding. The central issue was whether there was an evidential basis for inferring that the manager responsible for the relevant omissions knew of, and was influenced by, the claimant’s absence history.

1. Appeal allowed by a majority. The section 15 finding was set aside and the disability-discrimination claim was dismissed.

2. Section 15 requires unfavourable treatment because of something arising in consequence of disability. In a case concerned with the decision-maker’s conscious or unconscious reasoning, the tribunal must identify the person responsible for the omission and determine whether the relevant disability-related matter could have influenced that person’s mind. A person cannot be influenced by a matter of which they are unaware.

3. The responsible person was Ms O’Farrell. The Tribunal had made no finding that she knew of the claimant’s osteoarthritis, her earlier absences, or the proposed further operation. The evidence about the claimant’s changed role, a discussion of selection pools, an illness-related absence from a meeting, the appeal hearing, and another employee’s sickness absence did not, separately or cumulatively, justify that inference.

4. Accordingly, there was no evidential basis on which the section 136 burden under the Equality Act 2010 could shift. A discriminatory motivation remains a real finding of fact, not a result produced merely by a legal presumption.

5. The majority added that, had the burden shifted, the Tribunal should have explained more clearly why it rejected the employer’s explanations for not offering or advertising the two posts sooner. It was nevertheless unnecessary to decide that issue. Ms Tatlow dissented, considering that the cross-examination question and answer supported an inference that Ms O’Farrell knew of the absences.

6. The rejection of direct discrimination was not inherently inconsistent with a section 15 claim. The former concerns disability itself; the latter may concern a consequence of disability, such as absence.

• Employment Appeal Tribunal: Allowed the employer’s appeal and dismissed the section 15 disability-discrimination claim: [2013] UKEAT 0395_12_2604.
• Employment Tribunal, London South: In Reasons sent on 24 April 2012, found the dismissal unfair, dismissed direct disability discrimination, and upheld discrimination arising from disability under section 15 of the Equality Act 2010.