Dismissal of an Employee & the Causal Link to Disability
The Employment Appeal Tribunal recently decided a case regarding dismissal of a disabled employee whom the employer (wrongly) believed was working elsewhere whilst absent from work due to long term sickness.
The case is Hall v Chief Constable of West Yorkshire Police
This case involves discrimination arising from disability.
The relevant law is set out in the Equality Act 2010 which states at Section 15 (1) that discrimination arising from disability occurs where:
- A treats B unfavourably because of something arising in consequence of B’s disability; and
- A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
This will only apply if A knew, or could reasonably have been expected to know, that B had a disability.
Miss Hall was employed by West Yorkshire Police (the ‘Employer’) as Finance Officer and she had been employed from February 1988.
Miss Hall was suffering from stress, anxiety and depression which are categorised as a mental impairment and it was accepted that she was a disabled person for the purposes of the Equality Act.
As a result of her disability Miss Hall had various periods of sickness absence and in 2010 following some issues at work she was again signed off sick by her GP. Various meetings took place between Miss Hall and the Employer and Miss Hall made a complaint about a colleague who was undertaking a review of her department.
In or around August/September 2010 the Employer started covert surveillance of Miss Hall on the basis of a report they received that she had been seen working in a pub whilst off sick.
The Employer informed Miss Hall of an investigation in November 2010 but did not particularise the allegations against her.
Various correspondence followed in which the Employer stated that they expected Miss Hall back at work and that she were to have no further sickness absences.
In March 2011 Miss Hall was invited to a disciplinary meeting and on the 13th April 2011 the Employer wrote to Miss Hall to inform her that her employment had been terminated by reason of gross misconduct.
Miss Hall made a claim in the Employment Tribunal for unfair dismissal and discrimination arising from disability.
The Employment Tribunal decided that they had serious concerns about the fairness of the disciplinary hearing and that there had been several breaches of the Employer’s own disciplinary procedure.
Although the Employment Tribunal decided that Miss Hall had been unfairly dismissed they did not agree that the decision was discrimination.
In deciding they stated in the judgement that;
‘when considering when unfavourable treatment is to be held to be ‘because of something arising in consequence of the disability’. We agree that the disability has to be the cause of the Respondent’s action; not merely the background circumstance. We do not think that the motivation for the unfavourable treatment was the Claimant’s disability; rather we conclude that it was the genuine, albeit wrong, belief that Miss Hall in taking sick leave was falsely claiming to be sick. The Tribunal therefore does not find that the unfavourable treatment was ‘because of something arising in consequence of the disability’.
Despite citing 10 instances of unfavourable treatment by the Employer the Tribunal considered that the connection between the unfavourable treatment and Miss Hall’s disability was too remote.
They concluded that the reason was not linked to her disability but because the Employer believed she had been falsely claiming to be sick.
Miss Hall appealed against the decision.
The Employment Appeal Tribunal allowed Ms Hall’s appeal on the grounds that the Employment Tribunal had imposed too stringent a causal link between Ms Hall’s disability and the unfavourable treatment.
The Appeal Judge analysed previous cases where the causal link had been discussed and noted that the Tribunal had made three errors;
‘Firstly, it appeared to consider that it was necessary for the Claimant’s disability to be the cause of the Respondent’s action in order for her claim to succeed.
Secondly, it made a contrast between the cause of the action and a background circumstance. This leaves out of account a third logical possibility, which, it seems to me, is present on the looser language of section 15(1); i.e. a significant influence on the unfavourable treatment, or a cause which is not the main or the sole cause, but is nonetheless an effective cause of the unfavourable treatment.
The third error, in my judgement, in the ET’s approach, as evident from paragraph 7.8 of its Decision, is its reference to the motivation for the unfavourable treatment.
It is clear from the authorities which I have cited at some length that to inquire into the motivation for unfavourable treatment is to ask the wrong question.’
Points to note
This is an interesting analysis of the protection from discrimination arising from disability and is a helpful reminder to employers to act with caution when making decisions about employees who have a disability.
The case lowers the bar for employees who claim under Section 15 of the Equality Act 2010 and illustrates that an employer’s motivation is irrelevant.
In my opinion if you read the facts of this case it also serves as a lesson in how not to handle a delicate situation such as that which arose with Miss Hall.
What action do you need to take?
- Ensure that any Managers or Supervisors who make decisions about disciplinary and dismissal issues are trained or have some knowledge of the Equality Act requirements.
- Consider adding an equality policy to your staff handbook.
- Seek advice if you have a similar situation.
Hall v Chief Constable of West Yorkshire Police – Employment Appeal Tribunal