Zoe Lucas v Cosmeceuticals Ltd

Section 136 of the Equality Act 2010 is engaged only where there are facts capable of establishing a prima facie contravention. Where there is no evidence on a material issue, including causation, a tribunal need not consider the shifting burden of proof.

In a reasonable-adjustments claim, the claimant must establish that the alleged disadvantage is connected with disability or its treatment. The statutory comparison under section 20(3) is with persons who are not disabled. A tribunal does not err by rejecting an unpleaded formulation of a PCP or disadvantage, and may find that an adjustment actually made was sufficient without separately analysing a more onerous proposed adjustment.

The appellant, who had multiple sclerosis known to her employer, was employed as a Business Development Manager from March to August 2017. After her dismissal, she brought claims under sections 15, 21, 26 and 27 of the Equality Act 2010.

Following a six-day hearing, the Employment Tribunal dismissed all claims. It found that dismissal resulted from poor sales performance, not the matters alleged by the appellant, and that there was no evidence that the performance issue or a short sickness absence was caused by her disability. It also rejected her reasonable-adjustments claims.

On appeal, she challenged only the dismissals of the section 15 and section 21 claims. The central issues were whether the Tribunal had erred concerning causation, the burden of proof, the pleaded PCPs and disadvantages, substantial disadvantage, and the adjustment for a long journey.

1. Appeal dismissed. The Tribunal’s dismissal of the claims under sections 15 and 21 of the Equality Act 2010 disclosed no error of law.

2. For the section 15 claim, the Tribunal had found that dismissal was caused by poor sales performance. It was entitled to find that there was no evidence connecting that performance with multiple sclerosis or its treatment. Section 136 requires facts from which a contravention could be inferred absent another explanation. It is not necessary or appropriate to apply the burden-of-proof provisions where there is no evidence, and therefore no prima facie case, on causation.

3. The appellant had neither pleaded nor evidenced a case that inability to meet sales targets arose from disability or treatment. The medical report did not address that issue, and its author was not called. The Tribunal’s concise reasons were adequate and Meek-compliant.

4. The same conclusion applied to the two-day sickness absence. The Tribunal was entitled to conclude that there was no evidence linking the respiratory infection to disability or treatment. Section 136 consequently did not arise.

5. The Tribunal had correctly understood the pleaded PCPs. It did not convert a predominantly field-based role into an entirely field-based requirement, and it properly considered the expectation concerning appointments. The alleged inability to achieve appointments and sales targets was not pleaded or evidenced as a disability-related disadvantage.

6. The pleaded financial-loss and inability-to-perform-field-duties disadvantages were distinct. In any event, the absence of an evidential disability link defeated that aspect of the claim. The Tribunal also correctly applied the section 20(3) comparison with non-disabled persons. Its finding that an overnight break on the return journey was a reasonable adjustment sufficiently addressed the long-drive PCP; it implicitly rejected the need for the more onerous adjustment proposed.

• Employment Appeal Tribunal: dismissed the appellant’s appeal and upheld the Employment Tribunal’s dismissal of the section 15 and section 21 claims.
• Employment Tribunal: following a six-day evidential hearing, dismissed claims under sections 15, 21, 26 and 27 of the Equality Act 2010.