Williams v Ystrad Mynach College is a useful example of how tribunals are approaching the newly introduced concept of “discrimination arising from disability” under the Equality Act 2010. In this case, a lecturer who was placed on a less favourable contract was able to show that the disadvantage caused was as a consequence of his disability and the treatment could not be justified.

Under S.15 of the Equality Act 2010, an employer discriminates against a disabled person if that person is treated unfavourably because of something arising in consequence of his or her disability and the employer cannot show that the treatment is a proportionate means of achieving a legitimate aim.

Mr Williams (W) was a lecturer. He has hydrocephalus, a rare condition that leads to the build-up of fluid inside the skull. Following an operation to insert a shunt to drain the fluid, he began to have terrible headaches and was diagnosed with a haematoma on the brain. As the College formed the view from internet research that W’s condition meant that his intelligence would be impaired and so he needed to avoid higher-level thought functioning, W was moved, without his agreement, from a permanent contract to a short-term contract, on reduced hours, which could be ended with 2 weeks’ notice.

The tribunal reminded itself that the unfavourable treatment does not need to be “because of” a person’s disability, but must “arise in consequence of” the disability, and the EHRC Employment Code makes it clear there must be a connection between whatever led to the unfavourable treatment and the disability. The tribunal found that replacing W’s permanent contract with the inferior contract was undoubtedly unfavourable treatment and in giving evidence the College acknowledged that it arose in consequence of W’s disability. While the aim of providing a service to students while keeping W employed was capable of being a legitimate aim, that had not been considered at the time. The College had simply decided that W was no longer capable of doing his job and put him on the less favourable working arrangements to minimise the perceived disruption caused by his future absences. Therefore, W’s claim succeeded.

Lessons learned?: (i) clarification that in such cases there must be a clear connection between the cause of the unfavourable treatment and the disability; (ii) the potential side-effects of a disability should be explored with the medical profession and not by conducting internet research; (iii) objective justification for the treatment must be established before it is applied – ‘closing the stable door after the horse has bolted’ defences won’t work.