In Basildon & Thurrock NHS Foundation Trust v Arjuna Weerasinghe, Weerasinghe (W), a surgeon, had a serious lung condition that fluctuated in its effect on his day-to-day abilities. He was able to attend interviews for another job in Cork, and courses on the continent, despite being on sick leave and in receipt of sick pay, but was unable to come to see his Clinical Director when asked to do so. He was dismissed because it was thought there had been a lack of integrity, and assumed (wrongly) that he had been fit enough to see his Director and had not done so. 

An Employment Tribunal (ET) held that a number of the employer’s actions amounted to unfavourable treatment in consequence of W’s disability contrary to S.15 of the Equality Act 2010. These included failing to obtain medical reports, refusing to refer W to Occupational Health when he needed it, refusing to allow W to travel to Sri Lanka for recovery and threatening to withdraw sick pay if he did.

The EAT upheld the employer’s appeal. The ET did not apply the correct test, i.e. identify the two separate steps of causation for a claim to be established. The first is that the disability has the consequence of “something”, and the second is that the treatment complained of was because of that particular “something”.  As an example, the fact that W was told that his sick pay would be withheld if he went to Sri Lanka could not possibly be because of something arising in consequence of his disability. The case would therefore go back to the ET to apply the correct test. In giving its judgment, the EAT highlighted an example in the EHRC Code of Practice on Employment at paragraph 5.8 which shows how the two stage test works:

“A woman is disciplined for losing her temper at work.  However, this behaviour was out of character and is a result of severe pain caused by cancer, of which her employer is aware. The disciplinary action is unfavourable treatment. This treatment is because of something which arises in consequence of the worker’s disability, i.e. her loss of temper. There is a connection between the ‘something’ (that is, the loss of temper) that led to the treatment and her disability. It will be discrimination arising from disability if the employer cannot objectively justify the decision to discipline the worker.”

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