Readers may well know and fully understand s 15 of the Equality Act 2010 and its importance to the landscape of disability discrimination, however we think it does no harm to remind ourselves of the importance and usefulness of this section, particularly when combined with s 108.
Whereas direct discrimination under s 13 EqA 2010 requires “less favourable treatment” because of a protected characteristic, and therefore the use of a comparator, s 15 is based on “unfavourable treatment” because of something arising from a disability and therefore does not require a comparator.
In practical terms, the comparator requirement of s 13 made it necessary for an employee to prove that someone without his or her protected characteristic would not have been treated in the same way. For example, would someone who is not subject to a disability have been dismissed for the same misconduct? This is often a difficult question to answer in the negative, especially if the misconduct did occur and is serious. However, what if that misconduct was caused by a disability? That is the gap plugged by s 15. It was designed to stop the failure of claims in which an employee in the same circumstances but for disability would also have been dismissed or subjected to a detriment.
The key to s 15 is that there must be a link between the disability and the “something arising” from the disability, and separately, the something arising from the disability must be, or must have caused whatever is complained of by the employer.
Another distinction between ss 13 and 15 is the animus of a decision maker. Whereas s 13 requires consideration of the decision maker’s animus (thought processes) as the reason for the treatment must be the disability itself, s 15 does not. Under s 15 it is not necessary for the decision maker to have considered disability, provided the something arising from a disability was in mind. Therefore, the decision maker considering misconduct arising from a disability need not have considered whether the employee was actually suffering from a disability. The decision maker does not have to assess whether someone charged with the same misconduct, but not suffering from a disability, would have been or should have been treated in the same way. This simplifies matters for a claimant considerably. We are looking at cause and effect rather than the mental process of the decision-making and the need to prove less favourable treatment.
The correct legal test for liability under s 15 and a clear and helpful explanation of what is and isn’t required at each stage of the assessment is set out in the case of City of York Council v P J Grosset [2018] EWCA Civ 1105. In that case, the Claimant committed misconduct in the course of his employment, but the Employment Appeal Tribunal and the Court of Appeal both found that this misconduct was something that arose in consequence of Mr Grosset’s disability, and thus the dismissal was an act of unlawful discrimination. This case is a good example to illustrate the point that it is easier to establish liability under s 15 than it is under s 13, as it was accepted that the Respondent had dismissed Mr Grosset because of the misconduct, not because of his disability, yet it was still found to be discriminatory.
Moreover, given that Mr Grosset’s dismissal was found to be fair (despite being discriminatory), because it was within the band of reasonable responses for the employer to dismiss him for that misconduct, the clear implication is that a non-disabled employee would also have been fairly dismissed for the same misconduct, and therefore could be no “less favourable treatment”.
An additional consideration is whether s 108 EqA 2010 extends the liability period for an employer as it covers post-termination acts of discrimination related to the employment, including claims under ss 15 and 20, for example, in respect of dismissal appeals, the provision of references and processes with potential regulatory consequences. S 108 was designed to, on a statutory basis, remedy the disparity of treatment between acts of discrimination which took place during the lifespan of the contractual employment relationship, which were actionable, and acts of discrimination that came after the contract had ended, which previously were not.
There is a contradiction in s 108 as the heading is “Relationships that have ended” and the section itself refers to discrimination arising out of and “closely connected” to a relationship. There is still a relationship even though the employment contract has ended.
We have rarely seen s 108 used, but readers may have. Together, sections 15 and 108 offer a considerable degree of protection to employees. Employers may not appreciate this, even if their legal advisers do.
For more information, please contact someone in the Employment Department. Alternatively, call us on 020 7465 4300.
This article featured in our Spring edition of ‘IN CASE’, our Employment newsletter for HR Directors.
