In the case of Sheikholeslami v University of Edinburgh, the Scottish Employment Appeal Tribunal (EAT) held that the Employment Tribunal (ET) had erred in applying a test of strict causation when determining a claim of disability discrimination. It confirmed that when considering a claim of discrimination arising from disability a looser causation test should be enforced.
The Claimant was a Professor and Chair of Chemical Process Engineering employed by the Respondent. In January 2010 she was diagnosed with work-related stress and depression and was then absent from work until her employment was terminated. In April 2010, the Claimant raised a grievance concerning sex discrimination. As a result of this, the Respondent instigated a diversity review of the School of Engineering in June 2010, which concluded that there was no “gender bias as such”. However it was acknowledged that cultural problems did exist within the School of Engineering.
In January 2011, the Claimant made suggestions for a way forward which involved her being moved outside of the School of Engineering. However, whilst the Respondent did not cast aside the possibility of a move to a different school, it expressed that the best way forward would be for the Claimant to return from her sickness to the School of Engineering.
In October 2011, the Respondent’s HR department, aware that the Claimant’s work permit was to expire on 12 April 2012, began to set out possible options to extend her stay in the UK. However, no acceptable options were established and the Claimant’s employment was terminated, with the Respondent giving the reason that her work permit had expired.
The Claimant brought claims of unfair dismissal and unlawful sex and disability discrimination. She alleged that she was dismissed on the basis that her work permit was due to expire in order to avoid the problem of her sex and disability discrimination complaints.
The ET rejected all claims, stating that there was no evidence to show that there was a causal link between the Claimant’s disability and her refusal to return to her post in the School of Engineering.
The Claimant appealed and the EAT ruled in her favour. With regard to the claim of discrimination arising from disability, it held that the ET had failed to consider that the casual link between the Claimant’s absence or her refusal to return to her post and her disability could involve consideration of several factors. The ET did not consider why the Claimant was not prepared to return to her existing post.
The ET had described the critical question as being whether the Claimant’s refusal to return to her previous role was because of her disability or because of some other reason. However, the EAT held that this was not a binary question, as both reasons could have been effective if her disability caused her anxiety, stress and an inability to return to her previous post where she perceived the mistreatment and hostility to be, which subsequently led to her refusal to return. The critical question should have been whether the Claimant’s refusal arose in consequence of (rather than being caused by) her disability.
This case serves as a useful reminder that a fairly loose test applies when determining whether an employee’s actions arose out of their disability. The whole chain of facts needs to be assessed and the answer may well not be black and white.
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