EAT Disability Discrimination: Section 15 – An Employment Tribunal held that the Claimant, a Consultant Cardiothoracic Surgeon, had a serious lung condition which 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 by him to do so. He was disciplined and dismissed because the decision-maker thought there had been a lack of probity, and assumed (wrongly) that he had been fit enough to see his Director and had not done so. The Employment Tribunal held that this, failing to obtain medical reports, refusing to refer him to Occupational Health when he needed it, refusing to allow him to travel to Sri Lanka in response to a request to be permitted to do so and threatening to withdraw sick pay if he did, a refusal to carry over unused holiday from the previous year and failing to uphold an appeal against dismissal, were all acts of unfavourable treatment by the Respondent Trust arising from his disability, contrary to section 15 of the Equality Act 2010. In doing so, the Employment Tribunal did not apply the correct test, which is in particular to focus on the need to identify two separate causative steps for a claim to be established – first, that the disability has the consequence of ‘something’, and second that the treatment complained of as unfavourable was because of that particular ‘something’. The appeal was allowed, and those issues which might be arguable if the correct approach were adopted were remitted to the same Employment Tribunal for determination in the light of further submissions on the basis of the evidence already before the Employment Tribunal.
Langstaff P J
[2015] UKEAT 0397 – 14 – 2907
Bailii
Equality Act 2010 15
England and Wales
Employment, Discrimination
Updated: 04 January 2022; Ref: scu.552419
