Leicester City Council v John Gibbin

For discrimination arising from disability, the tribunal must distinguish between whether the alleged something arose from disability and whether that thing was an effective reason for the unfavourable treatment. The latter inquiry concerns the decision-maker’s reasons and cannot be satisfied by a simple but for causal sequence.

A reasonable-adjustments claim requires evidence of the pleaded substantial disadvantage. A risk of worsening a condition and difficulty participating in a process are distinct disadvantages. Objective justification requires the tribunal to make its own fair and detailed assessment of the employer’s real business needs against the discriminatory effect.

The claimant, a long-serving council employee with depression, brought claims under Equality Act 2010 section 15 and sections 20–21. The Employment Tribunal upheld, among other matters, claims concerning an IT investigation, the initiation of disciplinary proceedings, a warning under the attendance procedure, and alleged failures to make reasonable adjustments.

The council appealed all adverse findings except a finding concerning earlier discriminatory comments. The claimant cross-appealed against the tribunal’s finding that his use of work IT facilities did not arise from his disability. The central issues were whether the tribunal had correctly applied the causation requirements under section 15, established a pleaded and evidenced substantial disadvantage, and properly assessed justification for the attendance warning.

1. Appeal allowed on grounds 2, 3 and 4; ground 1 and the cross-appeal dismissed. The Employment Tribunal was entitled to find as matters of fact that the claimant’s attendance at the office outside normal hours, and his failure to explain himself when questioned, arose in consequence of depression. No elaborate comparator or medical evidence was required for those factual findings.

2. However, the tribunal erred in finding that the IT interception and the later invitation to an investigatory meeting were because of those matters. Under Equality Act 2010 section 15, the question is whether the identified thing was an effective reason in the decision-maker’s mind. The tribunal’s reasoning that the investigatory process would not have occurred but for the interception applied the wrong causation test. The office attendance was, at most, the opportunity for inappropriate material to be discovered. It was not shown to be the reason for the later disciplinary process.

3. The reasonable-adjustments findings concerning the disciplinary process could not stand. The pleaded disadvantage was that the process would exacerbate depression. There was no adequate evidence of that proposition. The tribunal instead reasoned partly from an unpleaded participation disadvantage, namely an alleged inability to present the claimant’s case clearly. Those disadvantages are distinct and may require different evidence and adjustments. The tribunal also proceeded on the mistaken basis that the disciplinary process began while the claimant remained absent through sickness, although he had returned to work months before the investigation commenced.

4. The findings concerning the attendance warning also could not stand. Although the employer had a legitimate aim of maintaining attendance, the tribunal failed to conduct the required fair and detailed balancing exercise between the employer’s business needs and the discriminatory effect. It did not engage with evidence about the operational consequences of absence or the attendance procedure. The findings on both section 15 justification and reasonable adjustments were therefore set aside.

• Employment Appeal Tribunal: Allowed the council’s appeal on grounds 2, 3 and 4 and set aside the Employment Tribunal’s adverse findings on claims 4(b), 4(c), 5, 7(b)–(d), and 8.
• Employment Tribunal, Leicester: Upheld some claims under Equality Act 2010 section 15 and sections 20–21, including the findings challenged on appeal. The citation is not stated in the judgment.