When considering if discrimination arising from a disability has occurred, should a tribunal consider if the treatment complained of was 'because of' disability, rather than 'but for' disability?
Yes, held the Court of Appeal in Robinson v DWP, rejecting the Claimant's appeal.
The Claimant brought complaints under the Equality Act 2010 of discrimination for reasons arising from disability (s15) and failures to make reasonable adjustments (s20) after her grievances weren't properly addressed, and screen magnification software couldn't be adapted for her use with a particular computer system, resulting in her transfer to other work. The tribunal upheld her complaint of discrimination for a reason arising from a disability, which the EAT overturned, on the basis that the tribunal's findings of facts could not support that conclusion.
The Court of Appeal held that the facts found by the tribunal in the case could not support findings of discrimination. Both direct discrimination and discrimination for something arising from a disability require the tribunal to decide whether the treatment complained of (whether less favourable or unfavourable) was because of the protected characteristic of disability, i.e. the motivation of the alleged discriminator(s) is relevant. A tribunal has to consider the thought processes of the decision-maker(s) concerned. It is not enough for a Claimant to show that 'but for' disability, she would not have been in the (unfavourable) situation complained of, even if, as here, the Claimant was not well-treated by the employer and had an understandable sense of grievance.
The Court considered when on appeal a case might be decided without remission to an tribunal, i.e. where the tribunal's findings of fact support only one conclusion.
Thanks to Ed McFarlane of Law at Work for preparing this case summary.