Discrimination arising from disability: tribunals must consider decision-maker’s thought processes

The Court of Appeal has confirmed that in discrimination arising from disability claims, tribunals must assess the reason for the unfavourable treatment and examine the decision-maker’s thought processes (Robinson v DWP).

Background 

Mrs Robinson worked at the DWP from 1992 to 2019. She was an Administrative Officer. Part of her role was computer based and required her to use specialist debt management software.

In 2014, she suffered a hemiplegic migraine. This caused blurred vision and substantially affected her ability to carry out day-to-day activities. It also resulted in her not being able to use the debt management software. 

In November 2014, the DWP changed its computer hardware which made it more difficult for Mrs Robinson to see her monitor clearly. The DWP undertook a risk assessment. This recommended screen magnification software, but the DWP struggled to implement this due to technical difficulties. Her illness led to periods of sickness absence. 

Mrs Robinson lodged a grievance in March 2016 about the delay in resolving her difficulties. Her grievance was upheld. She then brought a second grievance seeking an apology and compensation. She received an apology, but no compensation.

Mrs Robinson claims disability discrimination

Mrs Robinson issued a claim for discrimination arising from disability and failure to make reasonable adjustments. The tribunal rejected her reasonable adjustments claim but upheld her discrimination arising from disability claim. It found she had suffered unfavourable treatment (delays in dealing with her second grievance and its appeal and delays in realising that the recommended screen magnification would not work). It also ruled this treatment was because of something arising in consequence of her disability.

EAT overturns decision

The DWP appealed to the Employment Appeal Tribunal (EAT) and argued the tribunal had incorrectly applied a “but for” test when considering the reason for the unfavourable treatment. 

The EAT upheld the DWP’s appeal and ruled Mrs Robinson had not been discriminated against. Mrs Robinson appealed to the Court of Appeal.

Court of Appeal rejects discrimination claim

The Court of Appeal ruled the EAT had approached the claim for discrimination arising from disability incorrectly. While agreeing that Mrs Robinson had not been discriminated against, it overturned the EAT’s reasoning. 

The Court of Appeal confirmed that for a claim of discrimination arising from disability to succeed, a Claimant must show they were treated unfavourably and that this was because of something arising in consequence of their disability. This requires tribunals to analyse the thought processes of the decision-maker(s) concerned to determine why they acted as they did.  

It is wrong simply to consider if the treatment would have happened “but for” the disability. 

The Court of Appeal noted that Mrs Robinson had not been treated well by the DWP after her hemiplegic migraine and had an “understandable” sense of grievance.  However, the tribunal’s findings of fact did not indicate that the reason why she had been treated this way was connected to her disability. Her claim therefore failed. 

Comment

In a claim for discrimination arising from disability the reason for the unfavourable treatment complained of must be connected to disability. This case confirms that the conscious and/or unconscious thought processes of the alleged discriminator must therefore be examined. Credible witness evidence is needed to defend such a claim.

Interestingly, this appeal was heard remotely (via Skype for Business). With courts and tribunals adapting to the COVID-19 pandemic, more hearings are being heard remotely.