The Court of Appeal has held that, when considering a claim for discrimination arising from a disability, Employment Tribunals should consider whether the treatment complained of was "because of" a disability, rather than "but for" that disability. This means that the motivation behind the treatment complained of should be considered and it is not enough for a Claimant merely to show that they would not have experienced unfavourable or less favourable treatment if they did not have a disability.
In Robinson v DWP the Claimant was employed as an administrator who suffered from blurred vision which amounted to a disability and suffered from migraines as a result. The DWP installed a software package on work computers which made her symptoms worse. At first instance, the Employment Tribunal found that the Claimant had been discriminated against due to something arising from her disability but simultaneously found that the Respondent had made reasonable adjustments in moving her to a paper-based role. The Court of Appeal held that the detriment the Claimant had suffered was not because of her disability. The Employment Tribunal had wrongfully applied a "but for" test. Any unfavourable treatment suffered by the Claimant was because of an attempt to rectify the problem which failed. The DWP's treatment of the Claimant was therefore not motivated by the consequences of her disability and the claim could not succeed.
This case highlights the importance of considering reasonable adjustments for employees who may be placed at a disadvantage at work due to disability and to treat all employees consistently. Had the DWP subjected Ms Robinson to unfavourable favourable treatment because of her disability, or failed to make reasonable adjustments for her, then the discrimination claim may well have succeeded.
Originally published 21 August, 2020
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