Sheikholeslami v The University of Edinburgh

A reasonable-adjustments claim requires a comparison between the effect of a PCP on the disabled person and its effect on non-disabled people. It does not impose a strict requirement to prove that disability caused the disadvantage, nor require a like-for-like comparator. Medical evidence is not invariably necessary where the evidence and findings permit a common-sense inference that mental impairment prevented a return to the required workplace.

Under Equality Act 2010, section 15 requires two distinct causal inquiries. The unfavourable treatment must be because of identified “something”, and that something must arise in consequence of disability. The latter is an objective and potentially multi-link inquiry. A tribunal must determine material discrimination allegations properly advanced before it.

The Claimant, a professor employed by the University, was absent with stress and depression from January 2010 until her dismissal in April 2012. She alleged that the University had failed to make reasonable adjustments, discriminated against her because of something arising from disability, directly discriminated on grounds of sex, and victimised her after complaints of sex discrimination.

The Employment Tribunal dismissed the disability and sex-discrimination claims, while upholding certain victimisation and unfair-dismissal claims. It also refused to reconsider its earlier refusal to permit a late amendment for notice pay. The appeal concerned the Tribunal’s approach to the adjustment and section 15 claims, its failure to decide allegations in the Closing Schedule, and the amendment decision.

1. Appeal allowed in part. The Employment Tribunal erred in dismissing the reasonable-adjustments and discrimination-arising-from-disability claims. Its conclusions at paragraphs 200 and 204–206 were set aside. The omitted sex-discrimination and victimisation allegations in the Closing Schedule were also to be remitted.

2. The Tribunal had correctly identified a PCP requiring the Claimant to attend work at the School of Engineering. It then applied the wrong approach to substantial disadvantage. Section 20(3) of the Equality Act 2010 calls for an objective comparison with non-disabled people. It does not require proof that disability caused the disadvantage, nor a comparator in materially identical circumstances.

3. On the Tribunal’s findings, the Claimant’s continuing mental impairment and inability to return to that School exposed her to dismissal, whereas employees able to attend there were not so exposed. The Tribunal wrongly overlooked that disadvantage and wrongly treated medical evidence as essential. On these facts, the evidence and findings could support a common-sense inference that the impairment prevented her return.

4. For section 15, the Tribunal had to ask separately whether unfavourable treatment was because of the identified absence or failure to return, and whether that matter arose in consequence of disability. The latter inquiry is objective and may involve more than one causal link. The Tribunal wrongly imposed a binary and unduly strict test by treating disability and perceived mistreatment as mutually exclusive explanations.

5. The Tribunal also failed to adjudicate material allegations of sex discrimination and victimisation which it had treated as part of the case in the Closing Schedule. It had not declined jurisdiction over them, and could not adequately dispose of them through its brief conclusions on other allegations. The unpleaded allegation of a threat at a January 2012 meeting did not require determination because no amendment had been sought.

6. The general burden-of-proof ground failed. Where a tribunal can make positive findings about the reason for treatment, the burden-of-proof provision does not determine the result. Nor is there an inflexible rule that the actual decision-maker must give evidence if other evidence permits findings about the reasons for the decision.

7. The refusal to reconsider the late notice-pay amendment disclosed no error of law. The Tribunal applied the discretionary amendment principles lawfully, including delay, limitation, alternative remedy and the need for further evidence. The precise scope and form of the remission were left for submissions.

• Employment Appeal Tribunal: Appeal allowed in part. The reasonable-adjustments, section 15, and unadjudicated sex-discrimination and victimisation matters were remitted.
• Employment Tribunal: Judgment promulgated on 16 March 2017. It dismissed the unlawful sex and disability discrimination claims, save for certain victimisation claims, and upheld unfair dismissal and holiday-pay claims. It refused reconsideration of the late notice-pay amendment.