T-Systems Ltd v Lewis

For discrimination arising from disability under section 15 of the Equality Act 2010, the unfavourable treatment is the employer’s act or omission which disadvantages the employee. Where the complaint is dismissal, it is the dismissal, rather than the employer’s internal reasoning process.

“Something arising in consequence of” disability bears its ordinary meaning. It is a factual question of degree and is not confined to an effect beyond the employer’s control or to a direct effect upon the disabled person. The relevant consequence must, however, have operated on the decision-maker’s mind to a significant extent. The statutory justification defence remains available.

The employee had type 1 diabetes, known to her employer. While the employer introduced a new shift pattern and invited voluntary redundancies, it sought medical advice about her fitness to work the proposed pattern. She could not decide whether to accept the pattern or voluntary redundancy before receiving that advice.

The Employment Tribunal found that her resulting inability to decide tipped the balance towards her peremptory dismissal. It upheld her claim under section 15 of the Equality Act 2010, while rejecting direct discrimination. The employer appealed, contending that the Tribunal had misidentified the unfavourable treatment and had interpreted the statutory causal requirement too broadly.

1. Appeal dismissed. The Employment Tribunal had made an error in describing the addition of a factor to the balance favouring dismissal as the unfavourable treatment. Unfavourable treatment is what the employer does, says, or omits which disadvantages the disabled person. On the pleaded case, and plainly on the facts, it was the dismissal. A decision-maker’s mental process is not itself the treatment.

2. The error did not undermine the Tribunal’s essential reasoning. Its findings showed that the employee’s inability to choose between the new pattern and voluntary redundancy, pending the medical report required because of her diabetes, was the factor which caused the employer to dismiss her when and as it did.

3. Section 15(1)(a) of the Equality Act 2010 should be given its ordinary and natural meaning. There was no basis for restricting “something arising in consequence of” disability to matters outside the employer’s control, or to effects upon the employee alone. Whether the relevant matter arises in consequence of disability is a factual question of degree. A lengthy causal chain may mean that the connection is insufficient, but no separate or restrictive causation test should be imposed.

4. The relevant matter must also have formed part of the employer’s reason for the unfavourable treatment. Applying IPC Media Ltd v Millar [2013] IRLR 707, the question was whether it operated on the decision-maker’s mind, consciously or unconsciously, to a significant extent. The Tribunal was entitled to answer that question affirmatively.

5. The employer did not challenge the Tribunal’s finding that dismissal was not a proportionate means of achieving its stated legitimate aim. The statutory justification defence therefore failed.

• Employment Appeal Tribunal: dismissed the employer’s appeal and upheld the Employment Tribunal’s finding of discrimination arising from disability.
• Employment Tribunal, Bedford: by judgment dated 10 October 2014, upheld the employee’s claim under section 15 of the Equality Act 2010 and rejected direct discrimination.