Urso v Department for Work & Pensions (Disability Discrimination: Disability)

For disability claims, an employer and tribunal must focus on the symptoms and effects of the agreed impairment, rather than treating the diagnostic condition or its cause as determinative. Under section 15, the relevant consequence of disability need only have a significant, rather than trivial, influence on the unfavourable treatment.

Where a sole decision-maker is involved, actual knowledge remains material to direct discrimination. The inquiry must nevertheless address whether that person knew the facts and effects amounting to disability. The operation of an attendance-management policy can be a PCP. An actual dismissal is capable of amounting to harassment under the Equality Act 2010, although constructive dismissal itself is not.

The Claimant, a Finance Officer, was dismissed for incapacity following sickness absence and attendance-management procedures. The Respondent conceded that she had PTSD, which was a disability at the material time. The Employment Tribunal dismissed her disability discrimination and harassment claims, but upheld her unfair-dismissal complaint.

It found that the decision-makers did not know of the PTSD, that the absence and alleged failure to engage with the process did not arise from it, and that actual dismissal could not constitute harassment. The Claimant appealed those conclusions. The central issue was whether the Tribunal had taken an unlawfully restrictive approach to her psychiatric impairment and its effects.

1. Appeal allowed on all five grounds. The Employment Tribunal had approached the Claimant’s agreed PTSD too narrowly. It should have considered the underlying facts, symptoms and effects constituting the disability, rather than treating the diagnostic condition and the cause of particular symptoms as decisive. The evidence before the Respondent pointed to a psychiatric condition extending beyond ordinary stress or anxiety.

2. For discrimination arising from disability under section 15 of the Equality Act 2010, the Tribunal correctly identified the possible “something” as the sickness absence or alleged failure to engage with attendance management. It erred, however, in treating the finding that the principal reason for dismissal for unfair-dismissal purposes was conduct as answering the statutory question. The relevant consequence need not be the main or sole reason. It need only have a significant, more-than-trivial influence on the dismissal and amount to an effective reason or cause. On the Respondent’s own capability case, that threshold was met.

3. The direct-discrimination analysis was also flawed. Although the knowledge and motivation of others cannot be imputed to a sole decision-maker, the correct inquiry was whether the decision-maker knew facts and effects amounting to a disability. On the Tribunal’s findings, he had material information about an underlying mental-health problem and may have had actual knowledge of the impairment’s effects.

4. The material PCP for reasonable-adjustments purposes was the operation of the attendance-management policy. Had the Tribunal correctly assessed the disability and its effects, it would inevitably have found a substantial disadvantage compared with non-disabled persons.

5. An actual dismissal is capable of being harassment under sections 26 and 40 of the Equality Act 2010. Timothy James Consulting Ltd v Wilton concerned constructive dismissal, which is distinct because it follows the employee’s terminating act. It did not justify excluding an employer’s actual dismissal from the harassment jurisdiction.

6. The case was remitted to the same Tribunal. It was directed not to take account of Dr Beveridge’s reports dated 8 November 2013 and 30 May 2014.

• Employment Appeal Tribunal: Allowed the Claimant’s appeal and remitted the disability discrimination and harassment claims to the same Employment Tribunal.
• Employment Tribunal: Reserved Reasons sent on 23 September 2015. The Tribunal dismissed the disability discrimination and harassment claims but upheld the unfair-dismissal claim.