Risby v London Borough of Waltham Forest

For discrimination arising from disability under section 15(1) of the Equality Act 2010, the disability need not be the sole, main or direct cause of the conduct leading to unfavourable treatment. It is sufficient that the disability is an effective cause of that conduct.

An Employment Tribunal must separately determine the section 15 question, including objective justification, and unfair-dismissal reasonableness under section 98(4) of the Employment Rights Act 1996. Although the inquiries may overlap, an error on section 15 may materially affect the conclusion on the reasonableness of dismissal.

The claimant, a paraplegic employee, was summarily dismissed after angrily protesting about a management workshop being moved to a venue without wheelchair access and using racist language during the ensuing incidents.

He brought claims for unfair dismissal and disability discrimination. The Employment Tribunal dismissed both claims after holding that there was no direct linkage between his physical disability and his conduct. It also rejected his reasonable-adjustments claim.

The claimant appealed to the Employment Appeal Tribunal. The principal issue was whether the Tribunal had applied the correct causal test under section 15(1) of the Equality Act 2010, and whether that error affected its conclusion that dismissal was within the range of reasonable responses.

1. Appeal allowed. The Employment Tribunal misdirected itself by requiring a direct linkage between the claimant's disability and the conduct for which he was dismissed. Section 15(1) of the Equality Act 2010 requires the Tribunal to ask whether the conduct arose in consequence of disability. The disability may be an effective cause, even if it is neither the sole nor the main cause.

2. On the Tribunal's own findings, the inaccessible venue caused the claimant's indignation. His paraplegia was an effective cause of that indignation and therefore of his misconduct. His short temper was an additional cause, but its existence did not prevent the statutory causal requirement from being met. The Tribunal should therefore have considered whether dismissal was a proportionate means of achieving the employer's legitimate equal-opportunities aim.

3. The error was capable of affecting the unfair-dismissal decision under section 98(4) of the Employment Rights Act 1996. The Tribunal had recognised that a final written warning could have been an available alternative and had been troubled by the appeal officer's view that nothing the claimant could say could affect the outcome. A correct section 15 analysis could consequently bear upon whether dismissal fell within the range of reasonable responses.

4. The Tribunal was entitled to reject the procedural ground concerning the disciplinary decision-makers' consideration of the material. It was also entitled to find that the claimant's conduct eclipsed the reasonable-adjustments issue. Section 123(3) of the Equality Act 2010 fixes when a failure is treated as occurring for limitation purposes; it does not determine when the duty to make an adjustment arises.

5. The Employment Tribunal decision was set aside and the case remitted for redetermination of the identified issues. The respondent was ordered to pay the claimant's £1,200 lodging fee.

• Employment Appeal Tribunal: appeal allowed. The Employment Tribunal's dismissal of the unfair-dismissal and disability-discrimination claims was set aside, and the identified issues were remitted for redetermination.
• Employment Tribunal: following a nine-day hearing, dismissed the claimant's claims in a Reserved Judgment sent to the parties on 25 June 2015.