The Court of Appeal has held in Robinson v DWP that when considering if discrimination arising from a disability has occurred, a tribunal should consider whether the treatment complained of was ‘because of’ something arising out of a disability, rather than ‘but for’ something arising out of a disability
The Claimant, Mrs Robinson worked for the DWP as an Administrative Officer in the debt management department. She was disabled by reason of blurred vision to her left eye and her disability made it impossible to use a specialist debt management software called “Debt Manager” which was a requirement of her role. The DWP at this time were also updating its computer hardware which reduced the screen resolution on their computers and further impacted on the Mrs Robinson’s ability to see her monitor clearly. AN OH report recommended a ZoomText software however the DWP was not able to install this as it did not work with the Debt Manager software. Mrs Robinson raised a grievance in March 2016 claiming that the DWP had failed to protect her from stress which had a detrimental effect on her health and wellbeing and had failed to provide her with a suitable workstation. While her grievance was being investigated, the DWP moved her into a temporary paper-based role at the same grade. A claim to the Employment Tribunal (“the Tribunal”) followed for discrimination arising from disability and a failure to make reasonable adjustments.
The Tribunal upheld Mrs Robinson’s claim for discrimination arising from disability on the basis that she had been subjected to unfavourable treatment by being removed from the department and that the DWP had failed to deal with her grievances fully and in a timely manner.
The DWP appealed the decision on the basis that the Tribunal had impermissibly applied a “but for” test to establish Mrs Robinson’s claim for discrimination arising from disability. The Employment Appeal Tribunal agreed and overturned the decision on the basis that there were no primary facts to connect any unfavourable treatment with the consequences of Mrs Robinson’s disability.
Mrs Robinson appealed the decision to the Court of Appeal, and it was held that the facts found by the Tribunal could not support findings of discrimination. Whilst the delays and other issues complained of were detrimental to Mrs Robinson, they were not caused or carried out because of her disability or the symptoms arising from it. The Court of Appeal in coming to its decision found that the Tribunal had failed to consider the thought processes of the decision makers and had wrongly applied a “but for test”, i.e. ‘but for’ the discrimination, Mrs Robinson would have not been in the (unfavourable) situation complained of.
Clients often seek help in understanding the legal test for claims involving discrimination arising from disability. This case clarifies the position and confirms that Tribunals must consider the reasons for the unfavourable treatment and whether this is because of “something” arising in consequence of a disability i.e. if there is a delay to responding to a grievance, is this delay because of “something” arising out of the employee’s disability, taking into account the motivations of the parties.
Evolving case law in this area means that claims based even on a loose causal connection between a disability and the “something” arising out of this may be successful. This means employers should carefully consider an employee’s disability before taking any step or action and in order to be able to defend any claims, ensure that any action taken is reasonable and proportionate in the circumstances.
If you would like advice on the application of this test, please contact any member of the team.