ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
UKEAT 0015/16/BA
Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
LADY JUSTICE ARDEN
LORD JUSTICE SALES
and
LORD JUSTICE PETER JACKSON
Between:
City of York Council | Appellant |
- and - | |
P J Grosset | Respondent |
John Bowers QC and Sam Healy (instructed by City of York Council) for the Appellant
Ben Cooper QC and Angharad Davies (instructed by National Education Union) for the Respondent
Hearing date 19 April 2018
Judgment
Lord Justice Sales:
Introduction
This case concerns a claim of discrimination arising from disability under section 15 of the Equality Act 2010 (“EqA”) in relation to the dismissal of a teacher on grounds of gross misconduct. I will refer to the parties as the claimant and the respondent, as they were referred to below by the Employment Tribunal (“ET”) and the Employment Appeal Tribunal (“EAT”).
The claimant was a teacher employed by the respondent. He suffers from a disability in the form of cystic fibrosis, a serious disease. He was employed by the respondent with full knowledge of this and at the outset various reasonable adjustments were agreed to accommodate his disability. Unfortunately, no proper record was kept of the position and it was lost sight of when a new head teacher took over at the school. The claimant’s case is that he was subjected to an increased workload which he found he could not cope with. He was unable to absorb the increased pressure of work by working in his own time, by reason of the time-consuming exercise regime he has to pursue to keep his disease under control. He became very stressed under this increased pressure of work; his health suffered badly; and that in turn increased the level of stress, as he became worried not only about not coping at work but also that his health might be about to collapse and that he might need lung transplants.
Whilst subject to this high level of stress, the claimant showed a class of 15- year-olds an 18-rated horror film, entitled Halloween. He did not obtain approval for this from the school. Nor did he obtain consent from the pupils’ parents. When the school learned about this, disciplinary charges were brought against the claimant. These resulted in his summary dismissal for gross misconduct.
In the disciplinary proceedings, the claimant accepted that showing the film was inappropriate and maintained that it had happened as a result of an error of judgment on his part arising from the high level of stress he was under at the time in consequence of his disability. The respondent did not accept that the showing of the film had been a result of an error of judgment brought on by stress. Nor did it accept that expressions of regret and remorse by the claimant were sincere.
The claimant brought a range of claims against the respondent in relation to his dismissal. The ET (Employment Judge Forrest, Mr Williamson and Mrs Richards) upheld some of these and dismissed others. In particular, the ET unanimously found that the claimant’s claim of breach of section 15 EqA in relation to his dismissal was made out whilst at the same time ruling, by a majority, that his claim of unfair dismissal based on section 98 of the Employment Rights Act 1996 should be dismissed. This was on the basis that the findings made by the respondent and the sanction imposed fell within the range of reasonable responses open to it as employer: see British Home Stores Ltd v Burchell [1980] ICR 303.
The respondent’s appeal in relation to the claim under section 15 EqA in respect of the dismissal and the claimant’s appeal in relation to the ET’s decision regarding unfair dismissal were both unanimously dismissed by the EAT (HHJ Eady QC, Mr Beynon and Mr Smith). The respondent now appeals to this court in relation to the decision of the EAT in relation to the dismissal and section 15 EqA. There is no appeal by the claimant in relation to unfair dismissal.
Section 15 EqA provides:
“15 Discrimination arising from disability
(1) A person (A) discriminates against a disabled person (B) if—
(a) A treats B unfavourably because of something arising in consequence of B's disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”
The two issues which arise on the appeal concern (1) the proper construction of section 15(1)(a) and (2) the proper approach to determining whether a defence of justification has been made out under section 15(1)(b).
Factual background
The factual background is helpfully and succinctly set out by the EAT. I have gratefully drawn on its account for the following summary.
The claimant suffers from cystic fibrosis and, as such, it was accepted that he was a disabled person for the purposes of the EqA. The claimant had disclosed his condition when he successfully applied for the position as Head of English at the Joseph Rowntree School (“the School”), a secondary comprehensive school operated by the respondent. The respondent thus had the requisite knowledge of the claimant’s disability and reasonable adjustments had been put in place by the then Head Teacher when the claimant started his role in 2011. The claimant’s self-management of his cystic fibrosis imposed heavy demands on him, including needing to follow a lengthy daily exercise regime.
At that time, the School was in difficulties and the English department in disarray. The claimant succeeded in turning around the fortunes of the department according to the standards applying at that time, achieving the School’s best ever GCSE results in the summer of 2013.
In 2013, however, the performance standards applied to schools changed. Under the new performance standards, the emphasis shifted from GCSE results to measurements of progress for individual pupils. This change coincided with the appointment of a new Head Teacher, Mr Crane. Most unfortunately, Mr Crane had not been briefed by the respondent about the claimant’s disability, nor about the agreement in 2011 regarding reasonable adjustments to accommodate this.
Application of the new performance standards suggested there were still problems in English at the School, a point highlighted in a report to the governing body in September 2013. This led to a “robust and challenging” meeting between the claimant and the School’s senior leadership team, led by Mr Crane. Although the claimant was given inadequate notice of the issues to be discussed at the meeting, and disagreed with certain of the proposals, he put his weight behind implementation of the decisions made, albeit that imposed a significant additional burden on his department.
The workload for the claimant and the English department increased for the autumn term as some pupils were moved to a new IGCSE examination and syllabus. At the same time the claimant had to comply with an innovation introduced by Mr Crane, called a “Focus Fortnight”. This was designed to encourage greater reflection within, and upon, a particular department and was first tried out with the English department. Whilst intended to be supportive, it involved a significant increase in work for the claimant and the prospect of criticism of him and his department, and hence added to the work pressures upon him. Towards the end of the first Focus Fortnight, the claimant wrote a letter of complaint to Mr Crane, concerning what the claimant considered to be unreasonable deadlines, workload and pressure. He referred to his cystic fibrosis, not as meaning he was unable to do his job - he had shown he could - but as relevant to why he was raising his concerns at that stage, as he needed to be able to manage his health issues, and asked for consideration of a reduction or prioritisation of his tasks and a reduction of his workload.
There was a meeting on 15 October 2013, at which Mr Crane, who had not previously been aware of the claimant’s health condition, agreed he should be referred to Occupational Health but did not accept the claimant’s account of his workload and other pressures. He suggested that the claimant might ask for a day out from teaching duties if experiencing a particular backlog but did not offer a regular reduction. In fact, the Occupational Health referral was delayed; the claimant received his first appointment on 17 December 2013, by which time he had been off work for some weeks with stress.
Meanwhile, in October 2013, the claimant passed his annual appraisal. However, by the end of the month his lung function had dropped to an all-time low. By this stage he was very worried indeed about his health and about what this deterioration might mean for him, including the frightening prospect of needing to have a double lung transplant.
In November, the English department was selected for a second Focus Fortnight, with the consequential additional stress for the claimant that entailed.
On 8 November 2013, pupils sat their final IGCSE exam and the claimant took a small class immediately following that exam. The class concerned was described as a “nurture group”, a small class of a dozen or so 15- and 16-year-olds who for one reason or another needed more attention than others. The ET describes what took place in detail in its judgment. In summary, over the course of two separate lessons, on Friday, 8 November and again on Monday, 11 November, the claimant showed the pupils the 18-rated film Halloween. His intention was to use this as a vehicle for discussion in the class about construction of narrative. He did not inform the school that he was going to use an 18-rated film for this purpose, nor did he obtain consent from the parents of the pupils concerned.
Towards the end of November 2013, the claimant’s health had deteriorated to a stage where he felt he could no longer remain at work. He had been suffering stress for some time, and this was impacting upon his lung function. On top of this, one of his two deputy managers in English had recently resigned. At a meeting with Mr Crane on 27 November 2013 the Claimant explained that his health needs now required that he see his doctor and take time off work. He was thereafter signed off unfit for work due to stress.
During the claimant’s absence, Mr Crane covered some of his lessons. It was when doing so, on 29 November, that he learned that the nurture group had been shown the film Halloween. Concerned that a highly inappropriate film had been shown to a class of vulnerable 15- and 16-year-old students, Mr Crane obtained advice from the respondent’s human resources department that this might be viewed as gross misconduct. The claimant was duly suspended while one of the Assistant Head Teachers conducted a formal investigation. This included an interview with the claimant, who accepted that showing the film had been inappropriate and regrettable, but argued his judgment had been affected by stress, contributed to by his cystic fibrosis. The claimant denied knowing that any of the students were particularly vulnerable to self-harm, although the investigator maintained there were three present who had been or were involved in self-harming activities involving blades, with two having talked about suicide.
The investigation recommended that the matter proceed to a disciplinary hearing, which was arranged to consider three charges: (1) showing an 18-rated film with scenes of extreme violence to a class of 15- and 16-year-olds, (2) breaching British Board of Film Classification recommendations by showing the film without obtaining parental consent or seeking the approval of the Head Teacher or governors, and (3) breaching the School’s safeguarding policy. When the claimant was fit enough to attend, the disciplinary hearing took place on 27 March 2014, running into a second day, on 29 April. The claimant was represented by his trade union. The disciplinary panel, comprising governors of the School, found the three charges were made out and decided the claimant should be summarily dismissed. In particular, it did not accept the incident had been due to a momentary error of judgment caused by stress, noting that there were several points at which the claimant might have stopped the film. It further expressed concern that the claimant did not seem to feel what he had done was serious and had not shown remorse.
The claimant appealed. The appeal took place before a panel composed of another set of governors and was a full re-hearing, but the claimant was unsuccessful. The appeal panel did not accept the claimant’s case that the incident was the result of an error of judgment brought on by stress resulting from the combination of increased workload and his cystic fibrosis, and again did not consider that the claimant had properly acknowledged the seriousness of what he had done or shown appropriate remorse.
Meanwhile, in February 2014, the claimant had raised a grievance against Mr Crane, alleging a lack of support over the autumn term. The grievance process took place alongside the disciplinary process but was considered by a separate panel of governors. It was ultimately rejected, at the beginning of July 2014, with an appeal being rejected in early October 2014. The ET did not make detailed findings as to the grievance process but did observe that its separate handling meant that the disciplinary panel was not fully aware of the events of the autumn term.
The claimant brought various claims against the respondent, including under the Employment Rights Act 1996 for unfair dismissal, for discrimination under section 15 of the EqA and also claiming that there had been a failure to make reasonable adjustments as required by sections 20 and 21 EqA. The trial before the ET took place over five days in June 2015 with a further day in chambers. Its decision was sent out on 3 September 2015. The ET upheld the claimant’s claims of discrimination arising from disability under section 15 EqA, including in respect of his dismissal, and his claims of breach of the obligation to make reasonable adjustments (contrary to sections 20 and 21 EqA), but dismissed other EqAclaims. As mentioned above, the ET dismissed the claimant’s claim of unfair dismissal. The EAT commented that the ET’s decision contains a careful and even-handed assessment of the facts. I agree.
The claimant’s claims under section 15 EqA alleging discrimination arising from disability covered a number of matters, including his dismissal. So far as is relevant on this appeal, the claimant’s complaints related to the introduction of the Focus Fortnights and the consequential increase in stress and work; to the increase in workload during the period September to December 2013 which also increased the stress to which the claimant was subject (particularly by reason of the difficulty for him in absorbing increased work pressures in his own time, because of the time-consuming daily exercise regime which his disease imposed upon him); and to his dismissal.
The ET accepted that, by reason of his disability, the claimant was required to spend up to three hours a day in a punishing regime of physical exercise to clear his lungs. That severely restricted the time and energy available to enable him to adapt to sudden or significant increases in workload, which is what had happened in this case. In turn, the additional stress exacerbated the claimant’s medical condition and, as a result, he had been unable to cope with the very significant additional workload over the autumn term. That amounted to unfavourable treatment because of something arising in consequence of his disability, which the respondent was unable to justify on an objective basis. Before the EAT there was no longer any issue about those findings.
As for the claimant’s dismissal, that was plainly an act of unfavourable treatment. Having regard to the evidence given at trial by the claimant and also to the medical evidence before it, which was fuller and more relevant than that before the respondent when making its decision, the ET further found that the claimant had shown the film when suffering from an impaired mental state due to stress at such a high level that errors of judgment might be expected to arise as a result. The claimant had never previously made a comparable error and there had been no prior concerns about his safeguarding responsibilities. Specifically, the ET found that it was more likely than not that the claimant had made an error of judgment in selecting Halloween as a result of the stress he was under; showing this film was not an error he would otherwise have made; and, in very large part, that stress arose from his disability.
The ET held that section 15 EqA did not require there to be an immediate causative link with the claimant’s disability. It referred in that regard to paragraph 5.9 of the Code of Practice issued by the Equality and Human Rights Commission, set out below. It was satisfied that the error of judgment for which the claimant was dismissed arose in consequence of his disability.
As to justification of the dismissal under section 15(1)(b) EqA, the ET found that the school had legitimate aims of protecting children and ensuring that disciplinary standards are maintained. It accepted that protecting and safeguarding children is a fundamental objective for any school, and attached considerable weight to it. In the ET’s view, in light of the seriousness of the error of judgment, dismissal might well have been a proportionate response in an ordinary case. The respondent’s disciplinary panels had not accepted that the showing of the film was the result of a misjudgment due to stress or disability and had not accepted that the claimant demonstrated proper remorse or a real consciousness of the seriousness of what he had done; however, for the purposes of its assessment under section 15(1)(b) EqA, the ET made its own assessment, on the basis of all the evidence available to it (including material not available to the respondent at the time of the dismissal, such as the claimant’s evidence to the ET and further medical evidence which post-dated the dismissal decision). The ET found that the showing of the film had been the result of stress arising in consequence of the claimant’s disability and also that the claimant’s remorse was sincere, so that one could be confident that he appreciated the seriousness of what he had done and that there was no real risk of any repetition of such error of judgment if the undue level of stress to which he had been subject was removed. The ET found that, at its highest, a formal written warning would have been sufficient to achieve the respondent’s legitimate objective of protecting and safeguarding children and maintaining disciplinary standards. It also took into account that the acute stress which the claimant was under in November 2013 arose in part from failures by the respondent to put in place reasonable adjustments to moderate his workload, as required by sections 20 and 21 EqA. On this basis, the ET found that the dismissal of the claimant was not justified under section 15(1)(b) EqA. Accordingly, the ET concluded that the dismissal was an act of disability-related discrimination contrary to section 15 EqA.
The claimant had also complained that the respondent had discriminated against him by failing in its obligation to make reasonable adjustments, in breach of its obligations under sections 20 and 21 EqA. To some extent the ET agreed: various matters had placed the claimant at a particular disadvantage because of his disability (including those complained of under section 15), in respect of which the respondent failed in its obligation to make reasonable adjustments. The respondent should have made reasonable adjustments to limit the amount of work given to the claimant, to accommodate his disability. The ET did not accept, however, that the claimant’s case on reasonable adjustments (a failure to give proper weight to the medical evidence and a failure to impose a lesser sanction) was made out in respect of his dismissal. There was no appeal against these conclusions on reasonable adjustments.
As regards the claim of unfair dismissal, the ET by a majority (the Employment Judge and Mr Williamson) considered the findings by the relevant decision-makers for the respondent (in particular, the disciplinary appeal panel) that the showing of the film had not been the result of an error of judgment due to stress, that the claimant had not shown appropriate awareness of the seriousness of his behaviour and that consequently dismissal was the appropriate sanction decision, were all findings reasonably open to those decision-makers, applying the usual margin of appreciation for an employer which is relevant in relation to a claim of unfair dismissal. Showing the film was a clear and obvious act of misconduct. The respondent had taken a reasonable view of the claimant’s behaviour on the more limited medical evidence before it, and its decision to separate out the grievance and disciplinary procedures was one falling within the band of reasonable responses. Ultimately, while some employers might not have dismissed, it could not be said that the decision was outside the range of reasonable responses. In the view of the member of the ET who dissented (Mrs Richards), who was in favour of finding that the dismissal was unfair as well as in breach of section 15 EqA, the respondent had failed to place sufficient weight on the stress suffered by the claimant; had the respondent made the reasonable adjustments which the ET had unanimously found were required, it was unlikely the claimant would have made the error of judgment that led to his dismissal; the respondent had failed to take that into account; and consequently the dismissal was unfair.
The respondent appealed to the EAT in relation to the finding of the ET that there had been a breach of section 15 EqA in relation to the dismissal of the claimant. The claimant cross-appealed in relation to the ruling of the ET rejecting his claim of unfair dismissal. The EAT dismissed both the appeal and the cross-appeal. The respondent now appeals to this court in relation to the finding of breach of section 15 EqA in relation to the dismissal. The claimant has not sought to appeal in relation to the unfair dismissal claim.
Discussion
Issue (1): proper construction of section 15(1)(a) EqA
On this appeal, Mr Bowers QC for the respondent accepts that the respondent’s dismissal of the claimant was unfavourable treatment for the purposes of section 15(1)(a); that the unfavourable treatment was imposed, as the ET found, because the claimant showed pupils an inappropriate film (i.e. the showing of the film was the “something” referred to in section 15(1)(a)); and that according to the findings of the ET, which the respondent does not challenge on appeal, the claimant showed the film in consequence of his disability.
However, Mr Bowers submits that this is not sufficient to satisfy section 15(1)(a). According to him, the claimant also had to show that the respondent itself appreciated that the claimant’s behaviour in showing the film arose in consequence of his disability. This the claimant could not do, at any rate on the facts found by the ET, because it appeared to accept the evidence of the decision-makers for the respondent that they did not believe the claimant’s claim that his behaviour was the result of a misjudgment caused by levels of stress arising in consequence of his disability.
In my judgment, Mr Bowers’ submission on the construction of section 15(1)(a) must be rejected. The rulings of the ET and the EAT that the claimant’s case under section 15(1)(a) was made out in relation to his dismissal on the basis of the findings referred to in paragraph [33] above cannot be faulted.
On its proper construction, section 15(1)(a) requires an investigation of two distinct causative issues: (i) did A treat B unfavourably because of an (identified) “something”? and (ii) did that “something” arise in consequence of B’s disability.
The first issue involves an examination of A’s state of mind, to establish whether the unfavourable treatment which is in issue occurred by reason of A’s attitude to the relevant “something”. In this case, it is clear that the respondent dismissed the claimant because he showed the film. That is the relevant “something” for the purposes of analysis. This is to be contrasted with a case like Charlesworth v Dransfields Engineering Services Ltd, EAT (Simler J), UKEAT/0197/16/JOJ, unrep., judgment of 12 January 2017, in which the reason the claimant was dismissed was redundancy, so that no liability arose under section 15 EqA, even though the redundancy of the claimant’s job happened to be brought into focus by the ability of the defendant employer to carry on its business in periods when he was absent from work due to a disability. In that case, therefore, the relevant “something” relied upon by the claimant was the claimant’s absence from work due to sickness, but he was not dismissed because of that but because his post was redundant.
The second issue is an objective matter, whether there is a causal link between B’s disability and the relevant “something”. In this case, on the findings of the ET there was such a causal link. The claimant showed the film as a result of the exceptionally high stress he was subject to, which arose from the effect of his disability when new and increased demands were made of him at work in the autumn term of 2013.
In my view, contrary to Mr Bowers’ argument, it is not possible to spell out of section 15(1)(a) a further requirement, that A must be shown to have been aware when choosing to subject B to the unfavourable treatment in question that the relevant “something” arose in consequence of B’s disability (i.e. that A should himself be aware of the objective causation referred to in issue (ii) above). There are a number of reasons for this.
First and foremost, the argument is not compatible with the terms of section 15, read as a whole. I agree with the submission of Mr Cooper QC, for the claimant, that the natural meaning of the language of section 15(1)(a) is as set out above. I also agree with his submission that the defence in section 15(2) would be redundant if section 15(1)(a) were interpreted as Mr Bowers contends. On Mr Bowers’ contention, the requirement in section 15(1)(a) would only ever be satisfied if A is aware of B’s disability and, what is more, knows that the relevant “something” has arisen in consequence of it. If that is right, there would be no need for the defence in section 15(2). The presence of section 15(2) in the scheme of section 15 shows that the drafter cannot have intended that section 15(1)(a) should be read in this way.
Mr Bowers sought to argue that the word “treats” in the phrase, “A treats B unfavourably”, indicates that the sub-paragraph focuses upon A’s subjective state of mind in relation to both issue (i) and issue (ii). This places more weight on the word “treats” than it can bear in this context. In fact, all that this word is doing is referring to the treatment of B by A which has to be unfavourable if the subsection is going to apply. In that regard, it actually points to an objective matter (that is, how A has treated B) which does not import any test of A’s state of mind in acting as he does. More importantly, it does not say anything about the state of mind of A in relation to issue (i) and issue (ii).
In my opinion, there is no ambiguity in section 15(1)(a), read in the context of section 15 as a whole. However, if there were, the interpretation of section 15(1)(a) set out above is supported by the legislative history and explanatory notes for section 15 EqA and by the relevant part of the Employment Code of Practice issued by the Equality and Human Rights Commission. In the ET, the EAT and before us it has been common ground between the parties that the Code of Practice is a relevant aid to interpretation of the EqA. There was no detailed examination on this appeal of the basis for this common approach. It seems to me that it is probably best explained by the facts that the Code of Practice was issued shortly after the promulgation of the EqA and was presumably the product of deliberation between the Commission and the department which sponsored the legislation, so that it can be regarded as a form of contemporanea expositio and a legitimate aid to interpretation: see Bennion on Statutory Interpretation, 7th ed., D. Bailey and L. Norbury, section 24.17. Contrary to what appeared to be suggested at some points in the argument, I do not think that section 15 of the Equality Act 2006, referred to below, has the effect that the Code of Practice is constituted an aid to interpretation of the statute, as distinct from a guide as to its proper application. However, since the appeal proceeded on the basis of an agreement between the parties that the Code of Practice could be treated as an aid to interpretation of the EqA, it is not necessary to examine the precise basis for this any further in this judgment. Arden LJ is right to point out at para. [68] below that we did not have the benefit of argument about it.
Section 15 EqA was a new provision of discrimination law introduced for the first time in the Equality Act 2010, to restore the protection for disabled people beyond the more limited view of pre-existing discrimination law in section 5 of the Disability Discrimination Act 1995 which had eventually been adopted by the House of Lords in Lewisham London Borough Council v Malcolm [2008] UKHL 43; [2008] 1 AC 1399. The House of Lords reversed the decision of the Court of Appeal in that case ([2007] EWCA Civ 763; [2008] Ch 119), which had been to the effect that the fact that the alleged discriminator in that case did not know of the claimant’s disability when taking action adverse to him did not preclude a finding that he had discriminated against the tenant. In doing so, the House of Lords also overturned another Court of Appeal decision, which had appeared to establish that discrimination under section 5 of the 1995 Act could be established even though the defendant did not know of the link between the immediate reason for the adverse treatment in question and the claimant’s disability: Clark v Novacold Ltd [1999] ICR 951, see 963B-G per Mummery LJ.
The explanatory notes for section 15 EqA stated as follows:
“Section 15: Discrimination arising from disability
Effect
69. This section provides that it is discrimination to treat a disabled person unfavourably not because of the person’s disability itself but because of something arising from, or in consequence of, his or her disability, such as the need to take a period of disability-related absence. It is, however, possible to justify such treatment if it can be shown to be a proportionate means of achieving a legitimate aim. For this type of discrimination to occur, the employer or other person must know, or reasonably be expected to know, that the disabled person has a disability.
Background
70. This section is a new provision. The Disability Discrimination Act 1995 provided protection from disability-related discrimination but, following the judgment of the House of Lords in the case of London Borough of Lewisham v Malcolm [2008] UKHL 43, those provisions no longer provided the degree of protection from disability-related discrimination that is intended for disabled people. This section is aimed at re-establishing an appropriate balance between enabling a disabled person to make out a case of experiencing a detriment which arises because of his or her disability, and providing an opportunity for an employer or other person to defend the treatment.
Examples
- An employee with a visual impairment is dismissed because he cannot do as much work as a non-disabled colleague. If the employer sought to justify the dismissal, he would need to show that it was a proportionate means of achieving a legitimate aim.
- The licensee of a pub refuses to serve a person who has cerebral palsy because she believes that he is drunk as he has slurred speech. However, the slurred speech is a consequence of his impairment. If the licensee is able to show that she did not know, and could not reasonably have been expected to know, that the customer was disabled, she has not subjected him to discrimination arising from his disability.
- However, in the example above, if a reasonable person would have known that the behaviour was due to a disability, the licensee would have subjected the customer to discrimination arising from his disability, unless she could show that ejecting him was a proportionate means of achieving a legitimate aim.”
The explanatory notes indicate that Parliament intended section 15 EqA to strike a new balance of interests between a claimant and a defendant in a discrimination case where the alleged discrimination is not directly by reference to the claimant’s disability, but arises from detrimental treatment by reference to something else which arises from the claimant’s disability. There is no suggestion that the defendant must have known that this “something” must have arisen from the claimant’s disability; on the contrary, the explanation indicates that Parliament intended to reverse the practical effect of the decision in Malcolm, as regards the former requirement that the defendant should be aware that the matter which caused him to act unfavourably towards the claimant arose in consequence of the claimant’s disability.
Further, the second example given in the explanatory notes indicates an intention that liability can be established under subsection 15(1) even though the defendant does not know that the “something” (in that case, the slurred speech) arose from the claimant’s disability. The example indicates that the relevant defence would be under subsection 15(2), if the landlord is able to avail himself of it.
It is clear that, as stated in the explanatory notes, section 15 EqA establishes a particular balance between a person suffering from a disability and a defendant. The risk of unfavourable treatment because of something that has arisen from the disability is cast onto the defendant rather than the claimant. If the defendant does not know that the claimant suffers from a disability, he has a defence. But if he does know that there is a disability, he would be wise to look into the matter more carefully before taking unfavourable action. The defendant will also have a defence if he is able to justify the unfavourable treatment under subsection 15(1)(b).
In the present case, the claimant maintained to the respondent that the showing of the film was down to an error of judgment arising in consequence of his disability. He satisfied the ET that this was indeed the case, although the respondent did not believe him. In those circumstances, it seems clear that Parliament intended that the claimant should have the protection of section 15, subject to the issue of justification under subsection 15(1)(b).
The relevant sections of the Code of Practice state as follows:
“Introduction
5.1 This chapter explains the duty of employers not to treat disabled people unfavourably because of something connected with their disability. Protection from this type of discrimination, which is known as 'discrimination arising from disability', only applies to disabled people. …
How does it differ from direct discrimination?
5.3 Direct discrimination occurs when the employer treats someone less favourably because of disability itself (see Chapter 3). By contrast, in discrimination arising from disability, the question is whether the disabled person has been treated unfavourably because of something arising in consequence of their disability.
Example:
An employer dismisses a worker because she has had three months' sick leave. The employer is aware that the worker has multiple sclerosis and most of her sick leave is disability-related. The employer's decision to dismiss is not because of the worker's disability itself. However, the worker has been treated unfavourably because of something arising in consequence of her disability (namely, the need to take a period of disability-related sick leave). …
What does ‘something arising in consequence of disability’ mean?
5.8 The unfavourable treatment must be because of something that arises in consequence of the disability. This means that there must be a connection between whatever led to the unfavourable treatment and the disability.
5.9 The consequences of a disability include anything which is the result, effect or outcome of a disabled person’s disability. The consequences will be varied, and will depend on the individual effect upon a disabled person of their disability. Some consequences may be obvious, such as an inability to walk unaided or inability to use certain work equipment. Others may not be obvious, for example, having to follow a restricted diet.
Example:
A woman is disciplined for losing her temper at work. However, this behaviour was out of character and is a result of severe pain caused by cancer, of which her employer is aware. The disciplinary action is unfavourable treatment. This treatment is because of something which arises in consequence of the worker's disability, namely her loss of temper. There is a connection between the 'something' (that is, the loss of temper) that led to the treatment and her disability. It will be discrimination arising from disability if the employer cannot objectively justify the decision to discipline the worker. …
Relevance of reasonable adjustments
5.20 Employers can often prevent unfavourable treatment which would amount to discrimination arising from disability by taking prompt action to identify and implement reasonable adjustments (see Chapter 6).
5.21 If an employer has failed to make a reasonable adjustment which would have prevented or minimised the unfavourable treatment, it will be very difficult for them to show that the treatment was objectively justified. …”
The ET attached significance to the example in para. 5.9. It indicates the ambit of the “in consequence” formula used in subsection 15(1)(a), which does not require an immediate causative link between the “something” (i.e. that which provides the defendant employer with his reason for treating the claimant unfavourably) and the claimant’s disability. So, in the present case, there is a sufficient causative link between the showing of the film by the claimant and his disability. In any event, this relatively wide approach to that issue of causation is, in my view, inherent in the broadly drafted “in consequence” formula used in subsection 15(1)(a); and, as noted above, for the purposes of the appeal Mr Bowers accepts that the statutory requirement of a causative link between the claimant’s disability and the showing of the film by him is made out.
In my opinion, para. 5.9 of the Code of Practice also supports the claimant’s submissions in relation to the first issue on the appeal. It does not suggest that liability depends upon the employer being aware that the “something” in question has arisen in consequence of the employee’s disability. In the example, it is not suggested that the employer has to be aware that the employee’s loss of temper was due to her cancer, but only that the employer should be aware that she suffers from cancer (i.e. so that the employer cannot avail himself of the defence in subsection 15(2)).
In relation to the first issue in the appeal, I also note and take comfort from the fact that a long line of experienced judges in the EAT have come to the same conclusion regarding the proper interpretation of subsection 15(1)(a), namely that there is no requirement that the defendant should be aware that the “something” referred to in the provision has occurred in consequence of the claimant’s disability. See Land Registry v Houghton, HHJ Peter Clark, UKEAT/0149/14/BA, unrep., judgment of 12 February 2015, [19]; Basildon & Thurrock NHS Foundation Trust v Weerasinghe [2016] ICR 305, [25]-[26], [31] and [34] (Langstaff J); Hall v Chief Constable of West Yorkshire Police [2015] IRLR 893, [30], [35] and [42] (Elisabeth Laing J); Private Medicine Intermediaries Ltd v Hodkinson , HHJ Eady QC, UKEAT/0134/15/LA, unrep., judgment of 15 January 2016, [26]; Pnaiser v NHS England [2016] ICR 170, [31] (Simler J).
As regards this issue, I should also mention that in the course of the hearing Mr Bowers attempted to modify the respondent’s position, by arguing that the “something” by reason of which the claimant was dismissed also included the absence of remorse on the part of the claimant, as perceived by the respondent. However, this was not included as a ground of appeal for the appeal to the EAT, nor as a ground of appeal to this court. Nor does it seem to have been raised as an argument in the ET. It is not an argument open to Mr Bowers at this stage, as he eventually accepted in the course of the hearing. In any event, as Mr Cooper pointed out, it is unlikely that it would have made any difference even if the respondent’s case had been put in this way, because the showing of the film would still obviously have been a factor operating on the mind of the respondent to a significant extent when it decided to dismiss the claimant: see IPC Media Ltd v Millar [2013] IRLR 707, [17] per Underhill J, referring to the guidance in Nagarajan v London Regional Transport [1999] IRLR 572, at p. 576 per Lord Nicholls, regarding the test inherent in the “because of” formulation used elsewhere in discrimination law, and treating it as relevant to use of the same phrase in section 15 EqA.
Issue (2): justification under section 15(1)(b) EqA
In my judgment, the ET and the EAT have made a lawful assessment of the position in relation to this defence and the appeal in respect of this issue should also be dismissed. Contrary to Mr Bowers’ submission, and as the EAT rightly held, there is no inconsistency between the ET’s rejection of the claimant’s claim of unfair dismissal and its upholding his claim under section 15 EqA in respect of his dismissal. This is because the test in relation to unfair dismissal proceeds by reference to whether dismissal was within the range of reasonable responses available to an employer, thereby allowing a significant latitude of judgment for the employer itself. By contrast, the test under section 15(1)(b) EqA is an objective one, according to which the ET must make its own assessment: see Hardy & Hansons plc [2005] EWCA Civ 846; [2005] ICR 1565, [31]-[32], and Chief Constable of West Yorkshire Police v Homer [2012] UKSC 15; [2012] ICR 704, [20] and [24]-[26] per Baroness Hale of Richmond JSC, with whom the other members of the Court agreed.
Against this, Mr Bowers pointed to certain dicta by Underhill LJ in O’Brien v Bolton St. Catherine’s Academy [2017] EWCA Civ 145; [2017] IRLR 547, at [51]-[55], in which he observed that the tribunal, which had found that the dismissal in question in that case was in breach of section 15 EqA, was also entitled to conclude from this that it had been unfair as well. Mr Bowers’ suggestion was that this meant, in our case, that the ET should have reasoned in the opposite direction, by saying that by virtue of its ruling in relation to unfair dismissal it should also have concluded that there was no breach of section 15 EqA. However, I think it is clear that Underhill LJ was addressing his remarks to the particular facts of that case, and was not seeking to lay down any general proposition that the test under section 15(1)(b) EqA and the test for unfair dismissal are the same. No doubt in some fact situations they may have similar effect, as Underhill LJ was prepared to accept in O’Brien. But generally the tests are plainly distinct, as emphasised in Homer.
In the present case, the ET’s assessment that there was no good justification under subsection 15(1)(b) for the claimant’s dismissal contains no error of law. The ET correctly identified the relevant legitimate aims of the respondent employer and took them properly into account. It was entitled to find that the step of dismissal was disproportionate in the circumstances.
A particularly strong factor underlying the ET’s conclusion that the dismissal was not proportionate was its unchallenged assessment that, if the respondent had put in place reasonable adjustments as required by sections 20 and 21 EqA, by reducing the work pressure on the claimant, he would not have been subjected to the same level of stress. In its judgment on remedies, given at a later date, the ET explained that had such reasonable adjustments been made, it would have been “unlikely in the extreme” that the incident of the film would have occurred. Although the ET did not refer to the Code of Practice on this issue, paragraph 5.21 of the Code of Practice, set out above, makes it clear that a link between a failure to put in place reasonable adjustments and the unfavourable treatment in issue under section 15(1)(a) EqA may be an important factor to be taken into account under section 15(1)(b). By virtue of section 15(4) of the Equality Act 2006 the Code of Practice should “be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant”. The ET was plainly entitled to give the weight it did to the impact of the respondent’s failures to make such reasonable adjustments as it should have put in place.
In relation to the question of proportionality, the ET made its own assessment, on the evidence it had heard, whether the claimant’s remorse and acceptance that he had acted wrongly in showing the film were genuine. In my judgment, it was entitled to do so for the purposes of applying the objective test under section 15(1)(b). It had heard relevant evidence on this issue and was well-placed to make its own judgment about it. It was not obliged to proceed on the basis of the respondent’s subjective perception that the claimant’s remorse was not sincere.
Conclusion
For the reasons given above, I would dismiss this appeal.
Lord Justice Peter Jackson:
I agree.
Lady Justice Arden:
I agree with the judgments of Sales and Peter Jackson LJJ for the reasons given by Sales LJ (with one qualification concerning paragraph [42] above which I explain in paragraph [68] below). I add this concurring judgment because I was also one of the members of this Court in Lewisham LBC v Malcolm [2008] 1 AC 1399 almost exactly eleven years ago (and indeed I wrote the first judgment in that case ([2008] Ch 129)), and because, in my judgment, it is helpful to see section 15(1) EqA in its historical context to see how far the law has come in the intervening period.
As Sales LJ points out section 15 EqA is new. The provision which it replaced was in different terms and was contained in section 5 of the Disability Discrimination Act 1995 (“DDA”). Section 5 DDA defined discrimination as follows:
For the purposes of this Part, an employer discriminates against a disabled person if—(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and (b) he cannot show that the treatment in question is justified.
I need give only a very brief summary of Malcolm, which will necessarily not fully reflect the complexity of the issues at stake. Malcolm concerned a local authority tenant who suffered from schizophrenia and who, during a period in which he had failed to take his medication, had sublet his property in breach of the terms of his tenancy and ceased to be a secure tenant. The local authority took possession proceedings. The tenant relied on section 24 DDA, which prohibited a landlord from discriminating against a disabled person by evicting him or subjecting him to any other detriment for a reason related to his disability. This Court (Arden, Longmore and Toulson LJJ) found for the tenant. Following the earlier decision of this Court in Clark v Novacold Ltd [1999] ICR 951, we held that a reason which “relates to the …disability” was shown if the landlord took possession proceedings for a reason (the subletting) which engaged his disability, and that a disabled person had only to show that the landlord would not have treated a disabled person who had not sublet in the same way, not that the landlord would not have treated an able-bodied person in the same way. On the facts, we considered that the causative link between the taking of proceedings and the disability was shown by the evidence as to the appellant’s susceptibility to distortions of thinking. We also held (Toulson LJ dubitante) that the appellant did not have to know that the landlord knew of his disability.
The House of Lords, however, by a majority held that our construction of section 24 DDA was wrong. There had to be a comparison between the landlord’s treatment of the appellant and the way in which the landlord would have treated an able-bodied person. Therefore, there was no disability discrimination in that case because the landlord would also have taken possession proceedings against a person who was not disabled if he had sublet the premises. Moreover, the landlord could not be liable unless he was aware of the disability. The decision in Malcolm led to a wide debate about the law on disability discrimination and the enactment of section 15 EqA.
The useful point for present purposes which emerges from this history lies in the comparison between section 5 DDA and section 15 EqA. There are four relevant differences. First, the words “for a reason which relates to the disabled person's disability” have been removed. These words were held by the House of Lords to require some element of motivation on the part of the landlord. Second, there is no longer any need for a comparator, so that the courts no longer have to decide that question. Third, proportionality has been brought into section 15(1) EqA whereas it was previously dealt with in a separate provision in the DDA (section 5(3) DDA). Fourth, section 15(2) EqA is new.
The removal of the first two provisions makes it easier to understand the mischief to which the new section 15 EqA was directed, namely that the protection for the disabled person should be wider than previously. This confirms the observation of Sales LJ on this point.
Section 15(2) EqA also has no parallel in the DDA. In Malcolm, the House of Lords considered that the landlord had to know of the disability. There was no decision as to whether imputed knowledge was sufficient. Section 15(2) puts that beyond doubt. Malcolm did not, however, raise the question whether the landlord’s knowledge had to extend to the consequences of the disability. In agreement with Sales and Peter Jackson LJJ, I consider that section 15(2) is inconsistent with any suggestion that lack of knowledge of the consequences is a defence. I can also well understand that Parliament could have taken the view that if lack of knowledge of the consequences were a defence, that could well in practice undermine the wide protection already given by section 15(1) EqA. I therefore agree with Sales and Peter Jackson LJJ’s rejection of Mr Bowers’ argument that the appellant must additionally have known of the link between the respondent’s actions and his disability.
My provisional and respectful view, however, is that to use the Commission’s code of practice as an aid to construction, as Sales and Peter Jackson LJJ have done as a supplementary basis for their decision on this point, would be contrary to authority, the terms of section 15(4) of the Equality Act 2006 and the separation of powers, but as this matter was not argued I would leave this point open. It can then be considered in a case in which the issue needs to be decided (when it may be appropriate to invite submissions from the Commission itself).
As it is, Parliament has in my judgment struck the balance between the right-holder and duty-holder by providing that, as in the DDA, the employer or landlord will avoid liability if he can show proportionality.
As Sales LJ points out, there is now a consistent series of cases in the EAT which give the same meaning to section 15 EqA as this Court holds in this judgment. However, this is the first time that this Court has had to consider its meaning of section 15(1) EqA, and accordingly this decision is another important landmark in the development of disability discrimination. It remains to hope that, with the detailed and definitive interpretation of the earlier legislation by the House of Lords and the intervention of Parliament, the law can now be viewed as more settled.