West v The Royal Bank of Scotland Plc (Disability Discrimination)

For discrimination arising from disability, a tribunal must identify the unfavourable treatment, its effective cause, and whether that cause was something arising in consequence of disability. The latter is an objective factual inquiry and may involve a chain of causation. A conclusion rejecting that link requires adequate reasons.

For reasonable-adjustment and indirect-discrimination claims, the claimant must identify and establish the relevant provision, criterion or practice. A tribunal should assist an unrepresented claimant to clarify an apparent PCP, but need not formulate an unpleaded and unsupported alternative case. Once a pleaded scheme rule is established as a PCP, the tribunal must determine disadvantage, justification and reasonable adjustments.

The Claimant, who had cervical spondylosis, ceased receiving payments under the Respondent’s long-term disability scheme after an Occupational Health report stated that she no longer met the scheme’s incapacity definition. She later declined to participate in a redeployment process and was dismissed.

The Employment Tribunal sitting in Manchester dismissed her claims for disability discrimination and unfair dismissal. She appealed on five grounds. The material issues concerned discrimination arising from disability following the cessation of payments, an ergonomic assessment during redeployment, pension consequences of redeployment to lower-paid work, and the Share Save Scheme.

The central questions were whether the Tribunal had applied the statutory discrimination tests correctly and had adequately identified the relevant PCPs.

1. Appeal allowed in part. Grounds 1, 3 and 4 were allowed and remitted to a freshly constituted Employment Tribunal. Grounds 2 and 5 were dismissed.

2. On the long-term disability payment issue, the Tribunal correctly identified non-payment as unfavourable treatment and identified the altered Occupational Health advice as its effective cause. It did not, however, give adequate reasons for concluding that the advice did not arise in consequence of disability. The advice was commissioned to assess the disability and its consequences for work. There was a real risk that the Tribunal had construed section 15 too narrowly. The issue, including justification under section 15(1)(b) of the Equality Act 2010, had to be reheard.

3. The ergonomic-assessment claim failed. A claimant must identify and prove the PCP which causes the alleged substantial disadvantage. Although a tribunal should assist a litigant in person to identify an apparent PCP, it need not reconstruct a different case. The Claimant’s case below concerned a full assessment of a workplace before redeployment, but no workplace existed to assess. Her later alternative formulation was neither advanced below nor factually established.

4. The pension claim was wrongly dismissed on the basis that the final-salary rule had not been applied. The rule applied throughout employment, including redeployment, even though it used the best salary in the preceding ten years. The Tribunal should have considered disadvantage, justification and reasonable adjustments under sections 19 and 20.

5. The Tribunal also identified the wrong PCP for the Share Save Scheme. The pleaded features were the six-month period for curing arrears and the maximum of six missed payments, rather than merely a general requirement for monthly payments. It had not addressed the asserted particular disadvantage to disabled employees through long-term absence and reduced or nil pay.

6. The three discrete issues were remitted afresh to a newly constituted Tribunal. A short preliminary hearing and focused materials were indicated.

• Employment Appeal Tribunal: Allowed the appeal in part and remitted three disability-discrimination issues to a freshly constituted Employment Tribunal.
• Employment Tribunal, Manchester: By a judgment dated 5 November 2015, dismissed the Claimant’s disability-discrimination and unfair-dismissal claims.