Pnaiser v NHS England & Anor

For discrimination arising from disability under Equality Act 2010, section 15, a tribunal must identify the unfavourable treatment, determine the conscious or unconscious reason for it, and decide objectively whether that reason arose in consequence of disability. The relevant consequence need not be the sole or main reason, but must have a significant, rather than trivial, influence.

A claimant need only establish facts from which discrimination could be inferred for the burden of proof to shift. The claimant need not show that discrimination is the only possible inference. Motive is irrelevant. Knowledge under section 15 concerns the disability, not knowledge that the relevant matter arose from it.

The claimant, who was disabled and had substantial disability-related absences, accepted a conditional offer of employment from NHS England. The offer was withdrawn after her former manager at Coventry City Council gave an adverse verbal reference which stated that she would not employ the claimant in the proposed role.

The Employment Tribunal dismissed claims under section 15 of the Equality Act 2010 against both respondents. It held that the claimant had not established a prima facie case that the adverse reference, or the withdrawal of the offer, was because of disability-related absence. It nevertheless found that NHS England had constructive knowledge of the claimant's disability.

The claimant appealed the section 15 dismissals. NHS England cross-appealed the constructive-knowledge finding. The central issue was whether the Tribunal had correctly applied the reverse burden of proof and the causal requirements of section 15.

1. Appeal allowed; cross-appeal dismissed. The Tribunal imposed an impermissibly high burden by requiring the claimant in substance to establish that discrimination was the only inference before the burden of proof could shift. The correct question was whether the adverse reference, the manager's admitted reference to significant absence, and her knowledge and concerns about that absence were sufficient facts from which it could be inferred that absence was a conscious or unconscious reason for the reference.

2. The Tribunal also erred in treating the chronology of the telephone conversation as evidence that competence, rather than absence, caused the adverse reference. The manager denied making the adverse comments, gave no explanation for them, and the referee did not ask why she considered the claimant unsuitable. The Tribunal's conclusion was unsupported by, and contrary to, the evidence and its own findings.

3. Under section 15 of the Equality Act 2010, the tribunal must distinguish the reason operating in the alleged discriminator's mind from the objective question whether that reason arose in consequence of disability. The relevant consequence may be linked indirectly to the disability. Motive is irrelevant, and section 15(2) requires knowledge of the disability only.

4. Once the adverse reference was found capable of having been influenced by disability-related absence, its role in the withdrawal of the job offer had to be considered. Examining why the reference was given did not create an impermissible composite approach to liability. On the facts found, the reference arose at least partly from disability-related absence; NHS England had constructive knowledge of the disability; and neither respondent advanced justification.

5. This was one of the rare cases in which substitution was appropriate because no other conclusion was possible on the findings of fact. Findings of unlawful discrimination under section 15 were substituted against both respondents. The matter was remitted to the Tribunal for remedy.

• Employment Appeal Tribunal: Allowed the claimant's appeal, dismissed NHS England's cross-appeal, and substituted findings of unlawful discrimination under section 15 of the Equality Act 2010.

• Employment Tribunal: By a judgment with reasons sent on 29 December 2014, dismissed all disability-discrimination claims but found that NHS England had constructive knowledge of the claimant's disability.