So what do we know about section 15 of the Equality Act 2010 other than that it is new law and came into force following the debacle that was the decision in Malcolm v London Borough of Lewisham? Commentators thought it significantly lowered the bar for employees trying to demonstrate unfavourable treatment for a disability reason. In my view it does just that. Perhaps practitioners are taking time to get used to the new provisions and are nervous about running section 15 cases. I was expecting to see a lot more given the relative ease of the new law. I’ve certainly seen cases on reasonable adjustments failures which have failed and which would probably have succeeded under section 15: General Dynamics IT v Carranza is but one (UKEAT0107/14/1010).
A new decision just handed down by the EAT provides welcome relief for those wishing to understand the new law. In Land Registry v Houghton & Ors (UKEAT/0149/14/BA) HHJ Peter Clark provides a concise, clear and easy to read judgment which demonstrates nicely how straightforward a section 15 claim can be. He sets out the test, provides comment on how the law is to be applied and reaches a sensible decision.
The facts are that the Land Registry operated a bonus scheme in 2012 which gave employees a bonus of £900 if they had had a good performance and attendance record. The case concerned five employees, all of whom were disabled, to whom no bonus was awarded on the basis that final written warnings had been issued to them around attendance. Sickness absence related to disability had been discounted by the Land Registry and trigger points had been extended. They had adjusted policy but not, in the opinion of the tribunals, to a great enough extent. Both the first tribunal and the EAT held that failing to give a bonus was unfavourable treatment because of disability. The reason for not getting a bonus was the warning and the reason for the warning was disability. The tribunals were absolutely clear that the link between disability and the treatment had been established.
Remember also that there is no requirement for a comparator with section 15. This makes it a much easier claim to run than direct discrimination but then again it does give an opportunity for the employer to justify the treatment. Employers have to be able to show the policy was a proportionate means of achieving a legitimate aim, i.e. that there was no other less discriminatory measure they could have applied instead. Being able to justify treatment is a difficult exercise to undertake after the fact: employers should be encouraged to look at policies and consider whether they might have a discriminatory impact before they are asked to justify the position to an Employment Tribunal. It’s not easy but if you can demonstrate that you have considered the matter it will act as some form of insurance in the event of litigation.
HHJ Clark refers to the “deliciously vague formulation, “because of something arising in consequence of disability””. It is indeed delicious for disabled employees. What he is saying is that if there is a link between the “something” that led to the treatment (the doing or not doing of an act, i.e. giving a bonus) and the disability, section 15 is engaged. In this case the link was clear: disability = formal absence warning = no bonus = unfavourable treatment. The bonus was undoubtedly linked to disability.
Remember also the treatment just has to be unfavourable. With direct discrimination it has to be less favourable which involves comparison with a comparator, again more technical and often tricky. If an employee can establish that they have been treated in a way they would have preferred not to be treated, they can mount a section 15 claim.
The tribunal and the EAT found that the decision by the Land Registry to exclude the disabled employees from the bonus pool was disproportionate. Three of the five employees had improved their attendance record but no account was taken of this. Employees who had formal written warnings for conduct were still included in the bonus pool. The treatment was uneven and the lack of management discretion around the disabled employees was found to be unsustainable. The tribunal awarded the full bonus by way of injury to feelings.
The wording of the judgment is interesting: HHJ Clark held that the treatment complained of (no bonus award) was “plainly sufficient” to amount to unfavourable treatment. He adopted a common sense approach. Of course not getting a bonus when your colleagues do is unfavourable. Who could argue with that?
The Land Registry sought to show that the legitimate aim of rewarding employees for attendance was a justifiable reason to apply a policy which was on the face of it discriminatory. But here the fact of disability was to disqualify the employees from the bonus. What caused the treatment? Why it was the disability of course. Had they not been disabled they would have not got the warning and would have got the bonus. Pretty simple.
What this case demonstrates is that it is relatively easy for an employee to mount a section 15 case. All they have to do is argue that they have been on the receiving end of treatment which they did not appreciate: this could literally be anything – dismissal, a warning, selection for redundancy, being moved to another office – you name it, it can be section 15 discrimination. The difficulty lies with the employer in attempting to show that a legitimate aim is being pursued and that no other policy could achieve the same thing. Not such a simple exercise at all and one which merits full exploration. Any policy which you have which might have an impact on employees with disabilities needs review.
A word of encouragement: the other way to defeat a disability claim is to rely on medical evidence which can demonstrate that the impairment suffered by the employee does not amount to a disability under section 6. Other than with deemed disabilities (cancer, MS, HIV) this should almost always form the first line of defence.
Learn more on the law around disability discrimination at Disability Matters 2015, the first annual disability discrimination conference. www.didlaw.com/education