Philip McQueen v General Optical Council

For a claim under section 15 of the Equality Act 2010, a tribunal may begin either with the effects of disability or with the reason for the unfavourable treatment. It must identify clearly the questions it is deciding.

Where the tribunal finds that disability played no part in the claimant’s conduct said to have caused the treatment, there is no relevant “something arising in consequence” of disability. It need not then decide whether the employer acted because of that conduct. Although the statutory causal language is broad and does not require disability to be the predominant cause, a multi-factor analysis is unnecessary where the tribunal permissibly finds no causal contribution at all.

The claimant, a registration officer employed by the respondent regulator, had dyslexia, symptoms of Asperger’s syndrome, neurodiversity and left-sided hearing loss. He alleged, among other matters, unfavourable treatment because of conduct arising from those disabilities.

An Employment Tribunal at London Central dismissed the section 15 claim. It found that, on the occasions when the claimant had conflicts with colleagues, his conduct did not arise from his disabilities or from unrecorded changes of process. It found instead that he had a short temper and resented being told what to do.

The claimant appealed, contending that the tribunal had applied an unduly narrow test of causation or had given inadequate reasons. The central issue was whether the tribunal’s findings disclosed an error of law in its application of section 15 of the Equality Act 2010.

1. Appeal dismissed. Despite serious reservations about the Employment Tribunal’s unusual structure, drafting and treatment of limitation alongside merits, its reasoning disclosed no error of law or principle.

2. Section 15 requires a causal link between disability and the relevant “something”, and between that something and the unfavourable treatment. A tribunal may approach those questions in either order. It should, however, structure its reasons so that the reader can identify the question answered at each stage.

3. The statutory expression “arising in consequence of” imports a broad causal inquiry. Disability need not be the sole or predominant cause of the relevant thing; an effect to which it makes more than a trivial contribution may suffice. The tribunal’s reference to an “immediate trigger” was therefore unfortunate.

4. Properly read, however, the tribunal had not found that disability was a non-predominant cause. It found that the disabilities played no part in the conduct which led to the alleged treatment. Its findings, based on the medical evidence and the individual incidents, were that the conduct resulted from the claimant’s short temper and resentment of instruction. Those factual findings were not challenged as perverse.

5. Once that finding was made, there was no conduct capable of being “something arising in consequence” of disability. The further question whether any established unfavourable treatment was because of such conduct did not arise. The tribunal’s dismissal of the section 15 claim therefore stood.

• Employment Appeal Tribunal: Appeal dismissed in [2023] EAT 36.

• Employment Tribunal, London Central: The tribunal dismissed the claimant’s claim under section 15 of the Equality Act 2010, while allowing one victimisation claim. Its written reasons were dated 8 July 2020.