Department of Work and Pensions v Robinson

For discrimination arising from disability under section 15 of the Equality Act 2010, it is insufficient that, but for the disability and its consequences, the claimant would not have encountered the impugned treatment. The consequence of disability must be an effective cause of, or significantly influence, the unfavourable treatment.

An unsuccessful and protracted attempt to implement adjustments is not, without more, treatment motivated by the disability’s consequences. Nor does unreasonable delay in handling a grievance become discriminatory merely because the grievance concerns disability discrimination. A transfer to suitable work may be objectively justified where it enables the employee to remain employed at the same grade.

The Employment Tribunal upheld the claimant’s claim under section 15 of the Equality Act 2010, but dismissed her reasonable-adjustments claim under section 20. Her visual impairment and associated migraines prevented her from using the employer’s Debt Manager software. The employer attempted technical adjustments, including magnification software, and later moved her to paper-based work. It also delayed in resolving her grievances.

The employer appealed the section 15 decision. The claimant cross-appealed the dismissal of her section 20 claim, contending that other magnification software should have been adopted and relying on evidence arising after the Tribunal hearing.

1. Appeal allowed; cross-appeal dismissed. The Tribunal’s findings could not in law sustain a breach of section 15 of the Equality Act 2010. The EAT substituted dismissal of that claim and upheld dismissal of the section 20 claim.

2. Section 15 requires more than a factual “but for” connection. The relevant consequence of disability must have motivated the unfavourable treatment, in the sense that it was an effective cause of or had a significant influence on it. A claimant need not invariably cross-examine witnesses about conscious or unconscious mental processes. They may rely on the employer’s own evidence, permissible inferences and section 136. But there must be primary facts capable of supporting the required causal inference.

3. The unsuccessful attempts to make magnification software work were efforts to address the claimant’s disability-related difficulties. Any unfavourable effect arose because the attempted technical solution failed, took time and caused stress. That did not establish that the employer was motivated by the consequences of disability. The delays in the grievance process were bureaucratic and reprehensible, but no primary facts connected them to those consequences. A grievance is not discriminatory merely because it concerns discrimination.

4. If the Tribunal had found that the move to paper-based work was unfavourable treatment, the employer’s justification defence necessarily succeeded. The transfer enabled the claimant to remain in employment at her existing grade. It was a proportionate means of achieving that legitimate aim and was consistent with the Tribunal’s finding that reasonable adjustments had been made.

5. There was evidence supporting the finding that the employer had considered and reasonably rejected Super Nova and other magnification software. Evidence arising after the hearing could not show that the Tribunal’s decision on the evidence then before it was wrong. No exceptional basis existed for admitting it on appeal.

• Employment Appeal Tribunal: Allowed the employer’s appeal against the Employment Tribunal’s section 15 decision, substituted dismissal of that claim, and dismissed the claimant’s cross-appeal concerning section 20.
• Employment Tribunal, Huntingdon: In a reserved decision sent on 23 October 2018, upheld the section 15 claim under the Equality Act 2010 and dismissed the section 20 reasonable-adjustments claim.