Robinson v Department for Work And Pensions

Section 15 of the Equality Act 2010 requires a causal link between unfavourable treatment and something arising in consequence of disability. A claimant cannot establish that link merely by showing that treatment would not have occurred but for the disability, or that a grievance about discrimination was mishandled. Except in the most obvious cases, the tribunal must examine the relevant decision-makers’ conscious or unconscious thought processes. An appellate tribunal must respect the Employment Tribunal’s factual findings and remit an erroneous decision unless the only lawful outcome is clear from those findings and undisputed or indisputable facts. A move to suitable paper-based work may be justified where it enables continued employment at the same grade.

The Claimant, an administrative officer employed by the Department for Work and Pensions, developed a visual disability that affected her ability to use workplace computer systems. The Employment Tribunal extended time, upheld her claim under section 15 of the Equality Act 2010 in relation to several matters, and dismissed her section 20 reasonable-adjustments claim.

The Employment Appeal Tribunal, on appeal by the Department, rejected the section 15 claim. The Claimant appealed, arguing that the EAT had substituted its own factual conclusions and should have remitted the matter. The central issue was whether the ET’s findings permitted any lawful conclusion other than dismissal of the section 15 claim.

The appeal was dismissed. Lord Justice Bean gave the judgment, with Lady Justice Macur and Lord Justice Haddon-Cave agreeing.

1. Appellate role and remittal. The Employment Tribunal is the sole judge of fact. On an appeal through the EAT to the Court of Appeal, the question is whether the ET made an error of law, not whether the EAT did: Chief Constable of West Yorkshire v Vento [2003] ICR 318. Under the Jafri approach [2014] ICR 920, an erroneous decision should be remitted unless the error could not affect the result or the only lawful result follows from the ET’s findings and undisputed or indisputable facts. The EAT may apply that approach robustly where the claim is bound to fail: Burrell v Micheldever Tyre Services Ltd [2014] IRLR 630 and Henderson v General Municipal and Boilermakers Union [2016] EWCA Civ 1049; [2017] IRLR 340.
2. Section 15 causation. The phrase because of in sections 13 and 15 requires the tribunal, save in the most obvious case, to examine the putative discriminator’s conscious or unconscious thought processes. A mere but-for connection between disability and treatment is insufficient. The Court followed Dunn v Secretary of State for Justice [2018] EWCA Civ 1998; [2019] IRLR 298.
3. Application.
   • The move to a paper-based role could have been unfavourable treatment, but it was a proportionate means of enabling the Claimant to remain employed at the same grade.
   • The grievance delays were deplorable, but no facts linked them to the Claimant’s disability or its consequences. Mishandling a grievance is not discriminatory merely because the grievance concerns discrimination.
   • The complaint concerning delayed implementation of adjustments failed because the ET had found that the section 20 duty had been performed, making the contrary section 15 conclusion incompatible with its findings.
   • The ET had rejected the complaint about unsuitable work, and its finding that stress had been caused by the disability did not itself establish section 15 treatment.

1. Court of Appeal (Civil Division) On 7 July 2020, the court dismissed the appeal and upheld the conclusion that the Employment Tribunal’s findings required dismissal of the section 15 claim: [2020] EWCA Civ 859.
2. Employment Appeal Tribunal On 23 July 2019, Kerr J allowed the Department’s appeal against the ET’s section 15 decision and dismissed the Claimant’s cross-appeal concerning reasonable adjustments: UKEAT/0021/BA.
3. Employment Tribunal On 23 October 2018, the ET extended time, upheld the section 15 claim and dismissed the section 20 claim.