South Gloucestershire Council v Pavandeep Hundal

Where adverse treatment is imposed because of disability-related absence, the claim will ordinarily fall under section 15 of the Equality Act 2010, rather than direct disability discrimination. The comparator for direct discrimination must have the same relevant abilities and circumstances, including the consequences of disability. Direct discrimination may nevertheless arise where absence is a proxy for disability or where stereotypical assumptions are made about a disabled person.

For section 15, justification is assessed objectively. The tribunal must subject the employer’s asserted aim and measure to critical scrutiny, including whether the measure was appropriate and reasonably necessary. Possible steps which could improve future attendance may be relevant, even though no reasonable-adjustments claim has succeeded.

The claimant, an agency social worker disabled by endometriosis, had disability-related absences. When a permanent worker joined, the council terminated her placement rather than those of two other agency workers. The Employment Tribunal at Bristol upheld claims of direct disability discrimination and discrimination arising from disability. It rejected the council’s justification defence.

The council appealed. It contended that selection because of absence could not amount to direct disability discrimination and that termination was justified by efficient service management. The central issues were the correct classification of the discrimination claim and whether the tribunal had erred in rejecting justification under section 15 of the Equality Act 2010.

1. Appeal allowed in part. The finding of direct disability discrimination was set aside. The finding of discrimination arising from disability under section 15 of the Equality Act 2010 remained effective, so no remission was required.

2. The tribunal had found that the claimant was selected solely because of her sickness absence. That was treatment because of something arising in consequence of disability, not treatment because of disability itself. In a direct-discrimination comparison, the comparator must be attributed materially the same circumstances, including relevant abilities and the disability-related consequence relied on. A “but for” analysis, under which the absence would not have occurred but for disability, was inapt. The case involved neither absence as a proxy for disability nor stereotypical assumptions about future absence. The direct-discrimination finding therefore could not stand.

3. The tribunal did not err in rejecting justification under section 15(1)(b). Justification is an objective question, not a range-of-reasonable-responses assessment. The employer had to establish, through critical scrutiny, that termination corresponded to a real need and was appropriate and reasonably necessary for efficient management of the service.

4. The tribunal was entitled to conclude that the council had not discharged that burden. There was no specific consideration of the first comparator’s absences. The evidence did not establish that the claimant’s future absences would significantly impair the service during the short remaining contractual period. The tribunal could also consider her work quality and possible future measures, including altered working arrangements and occupational-health support. Such possibilities remain relevant to proportionality even if no reasonable-adjustments claim has succeeded.

5. The financial and injury-to-feelings awards stood because the loss from early termination was co-extensive with the surviving section 15 claim.

• Employment Appeal Tribunal: Allowed the appeal against the finding of direct disability discrimination, but dismissed the appeal against the finding of discrimination arising from disability under section 15 of the Equality Act 2010.
• Employment Tribunal, Bristol: Upheld the claimant’s complaints of direct disability discrimination and discrimination arising from disability. Other complaints were dismissed. The judgment was sent to the parties on 21 March 2023.