EAT DISABILITY DISCRIMINATION – Burden of proof
DISABILITY DISCRIMINATION – Section 15
The Claimant brought claims of unlawful disability discrimination under section 15 against both NHS England and the Council alleging (inter alia):
(i) that the withdrawal of a job offer by Prof Rashid on behalf of NHS England was unfavourable treatment, done because of something arising in consequence of her disability; and that Prof Rashid knew or ought to have known of her disability. No justification argument was advanced by NHS England.
(ii) In relation to the Council she alleged (among other things) that the giving of a negative reference by Ms Tennant which led to the withdrawal of the job offer was unfavourable treatment, given as a consequence of the absences which arose in consequence of her disability. It was conceded that the Council (and Ms Tennant) knew that the Claimant was disabled at the time the reference was given.
The claims failed and were dismissed by the Employment Tribunal on the basis that the Claimant failed to establish a prima facie case such as would shift the burden of proof to either Respondent.
The appeal would be allowed. A fair reading of the whole of paragraph 122 of the Tribunal Reasons shows that the Tribunal did apply a test that required the Claimant to show that the only inference that could be drawn was a discriminatory one before it could conclude that the burden shifted to the Respondents. This was an impermissibly high hurdle. What the Tribunal should have asked itself instead is simply whether the fact that Ms Tennant gave a negative reference, which she denied giving, in a conversation where she mentioned the Claimant’s significant absence, and her knowledge of and concerns about the Claimant’s history of significant absences were together sufficient to raise a prima facie case against the Council that absence was (consciously or unconsciously) a reason in Ms Tennant’s mind for giving the negative reference, so that the burden shifted.
Further, the Tribunal reached a conclusion that was not only unsupported by the evidence, but was contrary to the evidence about the negative reference, and contrary to the Tribunal’s own finding as to why Ms Tennant denied giving it. There were facts from which the Tribunal could infer that the unsuitability comments were made by Ms Tennant (at least partly) because of the Claimant’s absences (which were a consequence of her disability) so that the burden shifted to the Respondents to show that absence (or the consequence of the Claimant’s disability) played no part whatever in the reasons she said the Claimant was unsuitable that led to Prof Rashid’s withdrawal of the offer of employment.
The cross-appeal against the finding that Prof Rashid had constructive knowledge of the Claimant’s disability failed. The Tribunal made a conscientious assessment of the facts and a permissible finding that was not arguably perverse or in error of law.
For the reasons given at paragraphs 81 to 83, the EAT substituted findings of unlawful discrimination pursuant to section 15 against both Respondents.
Simler DBE J
[2015] UKEAT 0137 – 15 – 0412
Bailii
England and Wales
Employment, Discrimination
Updated: 07 January 2022; Ref: scu.556436
