The Court of Appeal has held in Robinson v. DWP that, when considering if there has been discrimination “arising from” a disability under section 15 of the Equality Act 2010, the correct test is whether the alleged treatment was “because of” the disability and not “but for” the disability.

The claimant was an administrator and suffered from blurred vision. Her disability caused her to suffer migraines when using particular computer software. When her grievances were not properly addressed and specialist software could not be adapted for her use with a particular computer system, she brought a claim for discrimination “arising from” a disability (as well as a claim for failure to make reasonable adjustments).

The Employment Tribunal upheld her claim for discrimination “arising from” a disability, but this was overturned by the EAT, which held that the Employment Tribunal’s findings of fact could not support that conclusion.

On appeal, the Court of Appeal agreed with the EAT and went on to look at the test for causation under section 15 of the Equality Act 2010, finding that:

• Discrimination for something “arising from” a disability requires the Employment Tribunal to decide whether the treatment complained of was because of the protected characteristic of disability, which means that the motivation of the alleged discriminator(s) is relevant;
• This requires an Employment Tribunal to look at the thought processes of the decision-maker(s) concerned; and
• A claimant cannot simply argue that “but for” the disability, he/she would not have been in the (unfavourable) situation complained of.

This is a helpful case for employers. Recent cases had started to suggest a widening of the scope of section 15 discrimination “arising from” claims, making it an increasingly easy claim for an employee to argue, but it appears that this trend has now been reversed.

Charlotte Davies is a Senior Professional Support Lawyer and Keith Williams is a Partner in the employment law team at Greenwoods GRM.

www.greenwoodsgrm.co.uk