Causation as it relates to claims under section 15 of the Equality Act 2010 (“EqA 2010”) – discrimination arising in consequence of disability – was recently considered by the Employment Appeal Tribunal (“EAT”) in McQueen v General Optical Council [2023] EAT 36.
Facts of the Case
Mr McQueen suffered from dyslexia, Asperger’s Syndrome, neurodiversity and hearing loss. It was accepted that he was disabled within the meaning of the EqA 2010, and that his disability could impact his day-to-day interactions at work.
Following medical and occupational health examinations, it was found that in certain situations of stress, anxiety or conflict, Mr McQueen had a tendency to display aggressive behaviours, such as raising his voice and using inappropriate speech. Following medical advice, his employer, General Optical Council, made adjustments to Mr McQueen’s working practices. These included providing him with a recording pen and ensuring that he was sent instructions by email if he was being asked to change how a task was carried out.
Despite these measures, further incidents of aggressive behaviour ensued, including several “meltdowns”.
Mr McQueen brought various claims in the Employment Tribunal (“ET”), including a discrimination claim because of something arising in consequence of disability, under s.15 EqA 2010. However, the ET found Mr McQueen’s actions did not arise as a consequence of his disability; rather they resulted from habit and his short temper. As such, the causal link was not established. The effects of Mr McQueen’s disabilities were limited to a requirement for written instructions to back up verbal communications; and a need for some physical adjustments to the workplace.
Employment Appeal Tribunal
Mr McQueen appealed on grounds that the ET had misinterpreted the test for “in consequence of”. He argued the ET had erred in law because it had effectively applied a “principal reason” or “predominant cause” test. Mr McQueen’s case was that the correct test required a much lower threshold to be met; the ET should have examined whether his disability had a “more than trivial influence” on the “something” arising in consequence of it.
The EAT was not convinced and upheld the ET’s decision. Though it recognised that Mr McQueen’s disability could cause certain behaviours, these “did not play any part in the conduct that led to the unfavourable treatment complained of”. This judgment demonstrates that merely establishing a disability, even where that disability could cause particular behaviours (the “something”), this does not in itself mean that causation will be established in a s.15 EqA 2010 claim. The EAT confirmed that once the tribunal had determined that the disabilities did not have any effect on the claimant’s conduct on the occasions in question, the further question whether any unfavourable treatment was “because of” that conduct did not arise
When delivering its judgment, the EAT provided guidance to inform analysis of s.15 EqA 2010 claims. Noting that the ET’s judgment had been confusing, it said the following questions should have been considered: (i) what are the disabilities; (ii) what are their effects; (iii) what unfavourable treatment is alleged in time and proved; and (iv) was that unfavourable treatment “because of” an effect or effects of the disabilities. Alternatively the ET could have asked itself (i) what unfavourable treatment is alleged in time and proved; (ii) what was the reason for that unfavourable treatment; (iii) what were the effects of the disabilities; and (iv) was the reason for the unfavourable treatment an effect or effects of the disabilities?
Considerations for Employers
Though employers may welcome this case as it displays a narrower approach to establishing a s.15 EqA 2010 claim, employers must nevertheless tread carefully. Disability discrimination cases are usually highly fact-specific, so regardless of the higher threshold required here, this may not always be the case with a different set of facts. As such, employers would be well advised to ensure they have appropriate support and measures in place for disabled employees. General Optical Council is a good example in this respect; it had sought medical advice and provided considerable support to Mr McQueen to help him manage his disability in the workplace. Therefore, even if a causal connection was established and the question of unfavourable treatment considered, General Optical Council may have had a good chance of meeting the objective justification test.