A Booth v Delstar International Ltd

For discrimination arising from disability under section 15 of the Equality Act 2010, an Employment Tribunal must address both causative stages. It must identify all effective conscious or unconscious reasons for the unfavourable treatment, including multiple causes, and determine objectively whether the identified something arose in consequence of disability.

For indirect disability discrimination, section 19 requires comparison between persons sharing the claimant’s particular disability and persons who do not share it. A comparison simply between disabled and non-disabled persons is insufficient. Statistical evidence is not invariably necessary, but the Tribunal must assess whether the PCP causes particular disadvantage to the correct group.

The claimant, who remained employed after a disabling stroke, alleged disability discrimination by Delstar. The Employment Tribunal upheld claims concerning Delstar’s delay in applying for income-protection benefit under sections 15 and 19 of the Equality Act 2010. It dismissed a separate section 15 claim arising from a meeting at which dismissal or a settlement package was discussed.

The claimant appealed the dismissal of that section 15 claim. Delstar cross-appealed the successful section 15 delay claim and the indirect discrimination claim. The central questions were whether the Tribunal had correctly applied section 15 causation, and whether it had used the correct comparator groups and group-disadvantage analysis under section 19.

1. Appeal and cross-appeal allowed. The Tribunal’s respective conclusions on the two section 15 claims were unsafe. Although different allegations can properly produce different outcomes, these allegations arose from the same manager’s belief and the Tribunal did not explain the differing causation conclusions.

2. Section 15 requires two distinct inquiries. At the first, the Tribunal must examine the alleged discriminator’s conscious and unconscious reasons for the unfavourable treatment. There may be more than one effective cause. At the second, it must decide objectively whether the identified something arose in consequence of disability. The fuller guidance in Pnaiser v NHS England, [2016] IRLR 170, required analysis of both stages and permitted a chain of consequential links.

3. The Tribunal had focused on the manager’s mistaken view of the insurance policy as a sole cause of the proposed dismissal. It had also treated the delay claim by reference to long-term absence and permanent incapacity, but the dismissal claim by reference only to long-term absence. The pleaded and accepted common something was absence due to long-term sickness. The Tribunal must reconsider both section 15 claims using that common formulation and assess possible multiple causes.

4. For section 19, read with section 6(3) of the Equality Act 2010, the relevant disadvantaged group comprises persons with the claimant’s same disability. The comparator group comprises persons who do not share that disability, which may include persons without a disability and persons with different disabilities. The Tribunal erred by comparing disabled persons generally with non-disabled persons and by assuming group disadvantage without analysing the likely impact of the PCP on persons sharing the claimant’s disability.

5. The section 19 claim must also be reconsidered. All remitted issues were sent to the same Tribunal if possible, otherwise to a differently constituted Tribunal.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and Delstar’s cross-appeal in [2023] EAT 22, and remitted the relevant claims.
• Employment Tribunal (Leeds): Judgment sent to the parties on 19 October 2020. It upheld the delay claims under sections 15 and 19 of the Equality Act 2010, but dismissed the other disability-discrimination claims, including the section 15 dismissal claim.