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Employment Law Cases
Causation and discrimination arising from disability
Robinson v Department for Work and Pensions
For a claim under s. 15 of the Equality Act a claimant cannot argue that ‘but for’ their disability they would not have been put in a situation that led to unfavourable treatment – rather the focus is on the reasons for the treatment itself.
Ms Robinson worked for DWP as an administrator in its debt management department. Part of her role entailed using computer software called Debt Manager. In November 2014 she suffered what was later diagnosed as a hemiplegic migraine. She developed blurred vision in her left eye, which substantially affected her ability to undertake day-to-day activities and made it impossible for her to work on a computer using Debt Manager. The DWP changed its computer hardware which caused a reduction in screen resolution and further impacted Ms Robinson’s ability to see the monitor. DWP attempted, over a lengthy period, to sort these problems but with little success. This caused Ms Robinson considerable stress which led to lengthy sickness absences. She lodged a grievance (which was upheld) about this slow technical response to resolve her difficulties, basing her criticisms on the contents of an OH report into her situation. DWP moved her into a paper-based role at the same grade. She lodged a second (unsuccessful) grievance seeking an apology and compensation; she received the former but not the latter. She brought two complaints at tribunal: discrimination arising from a disability (s. 15 of the Equality Act) and failure to make reasonable adjustments (s. 20 of the Equality Act).
The tribunal held that DWP had made all possible reasonable adjustments, but that Ms Robinson had been treated unfavourable in the way in which DWP had dealt with her grievance and its delay in finding a technical solution to her problems. DWP successfully appealed to the EAT which substituted a finding that Ms Robinson had not been discriminated against. She appealed to the Court of Appeal.
Court of Appeal decision
The appeal was dismissed.
The Court of Appeal approved the decision of the EAT who’d held that an incorrect approach to causation under s. 15 was the problem with the tribunal’s decision:
‘[The] “treatment” of [Ms Robinson] cannot, in my judgment, have been “motivated” … by the consequences of the disability. Only by applying the forbidden “but for” test can it be said that [Ms Robinson’s] symptoms caused her to be treated as she was. The finding was merely that an attempt was made to deal with the consequences of the disability, which did not succeed. In so far as the treatment was unfavourable at all, that was because the attempt to solve the problem failed, it took a long time and [Ms Robinson] suffered stress as a result … there are no primary facts to connect [DWP’s] conduct resulting in those delays with the consequences of [Ms Robinson’s] disability’.
Ms Robinson had been removed from her existing role and placed into another part of the same department in a new ‘paper-based’ role. That was plainly reasonable and proportionate, given the difficulties being caused by the computer software, thereby enabling her to remain at work at the same pay grade.
The tribunal’s conclusion that one of Ms Robinson’s grievances had not been dealt with in a timely manner could not support a finding of s. 15 discrimination. Its judgment did not engage in the thought processes of the managers dealing with her grievances, to see whether there was any basis for concluding that they delayed resolution of the grievance ‘because of’ something arising from her disability. It’s not enough for a claimant to show that ‘but for’ disability, she would not have been in the (unfavourable) situation complained of, even if, as here, she was not well-treated by DWP and had an understandable sense of grievance.
Ms Robinson’s allegation that DWP had treated her unfavourably by failing to implement the reasonable adjustments recommended by OH was also bound to be rejected on the tribunal’s own findings of fact. The tribunal’s finding that there was unfavourable treatment in this regard was incompatible with its finding that DWP had complied with its duty to make reasonable adjustments.
Link to judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2020/859.html
This is helpful clarification on the difficult issue of discrimination arising from disability. Although the ‘but for’ test was discredited some time ago, previous cases (namely Dunn v Secretary of State for Justice) had left this particular question up in the air, as to whether a claimant could say ‘but for my disability I would not even find myself in this situation in the first place’ and that argument has been firmly knocked on the head. Tribunals must look at the reasons for the treatment.