Under S.15 of the Equality Act 2010 (EA 2010), discrimination arising from disability occurs where a disabled person is treated unfavourably because of something arising in consequence of his or her disability, and it cannot be shown that the treatment is a proportionate means of achieving a legitimate aim.

In Hall v Chief Constable of West Yorkshire Police, the EAT held that an ET had erred in deciding that the dismissal of a disabled employee for gross misconduct after an absence involving disability-related sickness, was not an act of discrimination under S.15 EA 2010. The ET had stated that the disability has to be the cause of the employer’s action; not merely the background circumstance. It did not think that the motivation for the alleged unfavourable treatment was Hall’s disability, but the genuine, albeit wrong, belief that Hall was falsely claiming to be sick. Therefore, in the ET’s judgment the unfavourable treatment was not ‘because of something arising in consequence of the disability’.

The EAT held that the ET made three errors.  Firstly, it considered it was necessary for Hall’s disability to be the cause of the employer’s action in order for her claim to succeed.  Secondly, it made a contrast between the cause of the action and a background circumstance, but the way S.15 is phrased allows a claim to succeed where something arising from disability is 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, was the ET’s reference to the motivation for the unfavourable treatment, when case law is clear that to inquire into the motivation for unfavourable treatment is to ask the wrong question. On the true construction of S.15, the EAT held that the only decision open to the ET was that the claim succeeded.

This ruling will make it easier for a disabled employee to link a consequence of his or disability to unfavourable treatment, because the language of S.15 EA 2010 means that the disability itself does not have to be the effective cause; the fact that ‘something arising as a consequence of’ disability was a significant influence on the unfavourable treatment, or the effective cause, is sufficient. Employers will need to take this into account when tacking action against disabled employees and of course, the law allows employers to defend a claim by showing that the treatment was a proportionate means of achieving a legitimate aim.

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