Robinson v Department for Work And Pensions

The Court of Appeal dismissed the claimant's appeal against the Employment Appeal Tribunal. The claim concerned discrimination arising from disability under section 15 of the Equality Act 2010 and a separate claim under section 20 for failure to make reasonable adjustments. The Employment Tribunal had found discrimination under s 15, extended the time for bringing the claim and dismissed the s 20 complaint. The EAT (Kerr J) allowed the employer's appeal, concluding the ET's findings of fact did not support a s 15 conclusion because the ET had not engaged with the decision‑makers' thought processes and because parts of the ET's findings were inconsistent with its rejection of the s 20 claim.

The Court of Appeal endorsed the EAT's approach. It applied the established remittal principles derived from Dobie and Jafri and subsequent authorities, and held that remittal was unnecessary because the ET's findings and conclusions, read together, could only lead to the conclusion that the s 15 claim must fail. The court accepted that the employer's move of the claimant to a paper‑based role was a proportionate means of achieving a legitimate aim and that the delays and technical problems were attributable to bureaucratic and technical causes rather than discriminatory motivation arising from the claimant's disability. The court relied on s 136 (burden of proof) principles but concluded there were no primary facts from which an inference of discrimination could properly be drawn.

Background and parties: Mrs Elaine Robinson, a long‑serving Administrative Officer at the Department for Work and Pensions, suffered a hemiplegic migraine in November 2014 which caused substantially impaired vision. She required screen magnification to use the specialist debt management software used in her role. Technical incompatibilities and rollout delays followed and she brought internal grievances. The DWP accepted aspects of the grievance but did not award compensation. Mrs Robinson brought tribunal claims alleging discrimination arising from disability (s 15 Equality Act 2010) and failure to make reasonable adjustments (s 20).

Procedural history: The Employment Tribunal (Huntingdon) held the s 15 claim proved, extended time for bringing the claim and dismissed the s 20 claim. The DWP appealed to the Employment Appeal Tribunal (Kerr J) which allowed the employer's appeal on the s 15 point. The claimant obtained permission to appeal to the Court of Appeal and this court heard the appeal on 25 June 2020 and handed down judgment on 7 July 2020.

Nature of relief sought: The claimant sought to establish discrimination arising from disability and to recover any appropriate remedy including compensation; she also sought a declaration and remedies for failure to make reasonable adjustments.

Issues before the court:

• Whether the ET's findings of fact supported a lawful inference that the claimant suffered unfavourable treatment "because of something arising in consequence" of her disability under s 15 EA 2010;
• whether the EAT was right to substitute a conclusion rather than remit to the ET under the remittal principles in Dobie and Jafri;
• whether there was inconsistency between the ET's s 15 finding and its rejection of the s 20 claim;
• whether the ET had failed properly to apply the burden‑shifting rule in s 136 EA 2010 by not making sufficient findings about the decision‑makers' motives.

Court's reasoning: The court emphasised that an ET is the sole judge of primary fact but that an appellate tribunal may substitute findings where, on the ET's findings and undisputed facts, only one outcome is possible. The court applied the Jafri/Dobie approach and the decision in Dunn v Secretary of State for Justice. It concluded the ET had not identified primary facts from which a tribunal could infer that managers were influenced, consciously or unconsciously, by the claimant's disability or its consequences. The move to a paper‑based role was a legitimate and proportionate measure to enable the claimant to remain in post at the same grade. The delays and difficulties in implementing screen magnification were found to be explicable by technical and bureaucratic causes; the ET had itself rejected the s 20 claim and therefore could not consistently sustain a s 15 finding reliant on failure to make reasonable adjustments. The EAT was entitled to conclude there was no realistic prospect that a properly directed ET would reach a different conclusion and was therefore correct to decide the issue rather than remit.

Subsidiary findings: The ET's extension of time was not challenged and stands. The court noted sympathy for the claimant's treatment by the employer but concluded the legal tests for s 15 were not met on the findings available.

Appeal dismissed. The Court of Appeal agreed with the EAT that, on the Employment Tribunal's findings and the undisputed evidence, no proper inference could be drawn that the unfavourable treatment was because of something arising in consequence of the claimant's disability. Remittal was unnecessary because only one conclusion could legally follow from the facts found; the move to a paper role was a proportionate legitimate aim and delays and technical failures were non‑discriminatory in origin.

Employment Tribunal (Huntingdon) decision dated 23 October 2018 (ET found s 15 proved and dismissed s 20; extended time). Appeal to the Employment Appeal Tribunal (Kerr J, UKEAT/0021/BA) – judgment 23 July 2019 allowing the employer's appeal on s 15. Permission to appeal to the Court of Appeal granted by Henderson LJ on 25 November 2019. Court of Appeal heard appeal 25 June 2020 and judgment delivered 7 July 2020 ([2020] EWCA Civ 859).