Discrimination arising from disability: causal test


The EAT has held in Risby -v- London Borough of Waltham Forest 2016 that only a loose causal link between an employee’s conduct and their disability is required for the purposes of a disability arising from discrimination claim.

Discrimination arising from disability occurs where A treats B unfavourably because of something arising in consequence of B’s disability (emphasis added), and A cannot show that the treatment is a proportionate means of achieving a legitimate aim (s.15(1) Equality Act 2010).

Mr Risby, a paraplegic, was employed by the Council for 23 years. A training course had been arranged to take place at an external venue with wheelchair access, however due to the need to save costs it was rescheduled to take place at one of the Council’s own buildings, which was not wheelchair accessible. When he heard this, Mr Risby became angry and extremely upset, and shouted at a junior colleague. He swore, and made a racially offensive comment. Although Mr Risby was apparently unaware, the junior colleague that he was shouting at was actually of mixed race and was particularly upset as she felt this comment was aimed at her. Mr Risby was dismissed for gross misconduct.

The Tribunal dismissed his claims for discrimination arising from disability, and unfair dismissal. The EAT overturned this decision. It did not matter that Mr Risby’s short temper was a personality trait, rather than a direct consequences of his disability. If he had not been disabled then he would not have been so upset by the Council’s decision and the situation would not have arisen. In this way his conduct was “the product of indignation caused by that decision”. His disability was “an effective cause of that indignation and so of his conduct”. It did not matter that his personality trait (short temper) was also one of the causes for his behaviour, and one which did not arise from his disability.

The case was remitted to the Tribunal to decide whether dismissal was a proportionate means of achieving the legitimate aim of ensuring and promoting the Council’s equal opportunities policy. Similarly, the unfair dismissal claim also needed to be reconsidered as the decision on disability could have an impact on the reasonableness assessment.

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