Kelso v Department For Work And Pensions

For discrimination arising from disability under Equality Act 2010 section 15, the pleaded unfavourable treatment must be because of something which arose in consequence of disability. A disability-related benefit may form the background to an employer’s decision without supplying that causal connection.

Where the pleaded reason for dismissal is the employer’s belief that the employee dishonestly claimed the benefit, the alleged dishonesty is not, without more, something arising in consequence of disability. The section 15 claim may therefore be struck out if it has no reasonable prospects of success. A costs or expenses order for unreasonable conduct requires a sufficient finding of conduct that was unreasonable; advancing an unsuccessful legal argument is not, without more, unreasonable.

The claimant, a former Higher Executive Officer, brought claims for unfair dismissal and discrimination arising from disability after her dismissal for alleged dishonest claims to Disability Living Allowance. Her unfair dismissal claim remained live.

The Employment Tribunal struck out the section 15 claim under the Equality Act 2010. It held that dismissal was the only pleaded unfavourable treatment and that the employer’s alleged belief in dishonesty, rather than anything arising from disability, was the reason for it. The Tribunal also ordered the claimant to pay £1,247 expenses after an adjourned preliminary hearing.

The claimant appealed both rulings. The central issues were whether the pleaded case disclosed the causal connection required by section 15 and whether the conduct surrounding the adjournment justified an expenses order.

1. Appeal allowed in part. The appeal against the strike-out of the section 15 claim was dismissed. The appeal against the expenses order was allowed.

2. Section 15 required a pleaded chain of causation: unfavourable treatment; something arising in consequence of disability; and treatment because of that something. The claimant had accepted that dismissal was the sole unfavourable act and that the employer dismissed her because it believed she had dishonestly claimed benefits.

3. That alleged dishonesty was not something arising from disability. The fact that the benefit concerned disability was merely part of the background. The pleadings did not allege a separate unfavourable act linked to the claimant’s medical condition, mobility or care needs. Complaints about the adequacy and fairness of the investigation were matters for the unfair dismissal claim, not a relevant section 15 claim.

4. Hall v Chief Constable of West Yorkshire Police UKEAT 7 July 2015 was distinguishable. In that case, disability-related absences could form part of the rationale for dismissal. Here, there was no allegation that anything arising from disability caused the employer’s defective investigation or dismissal. The Employment Tribunal was therefore entitled to conclude that the section 15 claim had no reasonable prospects of success.

5. On expenses, rule 76 of the Employment Tribunal Rules 2013 required unreasonable conduct in the way proceedings were conducted. Counsel had been ready to resist strike-out and did not seek the adjournment. Although that argument failed, the Tribunal had made no sufficient finding that advancing it was unreasonable. The £1,247 expenses order was set aside.

• Employment Appeal Tribunal: allowed the appeal only against the expenses order and upheld the Employment Tribunal’s strike-out of the section 15 claim.
• Employment Tribunal: struck out the section 15 claim under the Equality Act 2010 and ordered the claimant to pay £1,247 expenses. The unfair dismissal claim remained to be heard.