Basildon and Thurrock NHS Foundation Trust v Weerasinghe

Section 15 of the Equality Act 2010 requires two distinct causal links. The tribunal must identify the particular something arising in consequence of the disability, and then determine whether the unfavourable treatment was because of that something. A general or nebulous connection between the treatment and the disability is insufficient. The statutory test must be applied to the treatment and its actual reason, while distinguishing context from causation. A one-off act may be a provision, criterion or practice, but is not necessarily one. For continuing acts, the tribunal must identify the link between the separate acts said to form a continuing state of affairs.

A consultant cardiothoracic surgeon with a fluctuating lung condition was disciplined and dismissed after attending interviews and professional courses while absent on sick leave, despite being unable on other occasions to meet his clinical director. The Employment Tribunal upheld claims under section 15 of the Equality Act 2010, but dismissed claims concerning indirect discrimination, reasonable adjustments and dismissal for making protected disclosures.

The Trust appealed the section 15 findings and the time-limit ruling. The claimant cross-appealed the findings on indirect discrimination, reasonable adjustments and the reason for dismissal. The central issues were whether the Tribunal had applied the correct causal test under section 15, whether the acts formed conduct extending over a period, and whether the remaining findings were legally sustainable.

1. Section 15 test. The appeal against the section 15 findings was allowed. Section 15 requires two separate causal stages: identifying the particular “something” arising in consequence of the disability, and deciding whether the claimant was treated unfavourably because of that something. The stages may be considered in either order, but both must be addressed.
2. The Employment Tribunal impermissibly reduced the statutory test to a general search for a link between the disability and the treatment. That approach failed to distinguish causative matters from the context in which the disability operated. The Tribunal also failed to identify the relevant “something” for each allegation and reached inconsistent conclusions concerning the ill-health retirement application.
3. The fluctuating nature of the claimant’s condition did not preclude a section 15 claim. The suggested “widgets” analysis could potentially establish that disciplinary action was taken because of an inability to attend meetings, where that inability arose in consequence of the disability, even if the employer wrongly believed that the claimant was malingering. The Tribunal had not considered that case properly.
4. The time-limit finding was also set aside. The Tribunal had to examine each act and identify the link, if any, between the acts said to constitute conduct extending over a period. It also had to consider an extension of time if any claim was out of time.
5. The cross-appeal failed. The Tribunal was entitled to find that the refusal to admit medical notes was an idiosyncratic individual decision rather than the application of a provision, criterion or practice, and there was insufficient evidence to satisfy the comparative disadvantage requirements of section 19(2). It was also entitled to find that the principal reason for dismissal was the decision-maker’s genuine belief about the claimant’s conduct, not his protected disclosures.
6. The section 15 and time-limit issues were remitted to the same Employment Tribunal on the existing findings of fact, without further evidence. The claimant was ordered to pay £1,600 in appeal costs, subject to set-off against any compensation.

• Employment Tribunal: On 23 June 2014, upheld claims concerning detriment for protected disclosure, unfair dismissal and discrimination arising from disability, but dismissed claims for indirect discrimination, reasonable adjustments and victimisation.
• Employment Appeal Tribunal: Allowed the Trust’s appeal on section 15 and time limits, dismissed the cross-appeal, and remitted specified issues to the same Tribunal.