The Court of Appeal has announced that discrimination against a disability doesn’t mean the employer should know that the disability was the underlying cause of the discrimination itself.
If there is a claim for discrimination arising from disability then the Court of Appeals will ask itself two vital questions:
- Was the employee treated unfavourably because of ‘something’ (i.e. a casual link. For example: stress)?
- Did the ‘something’ arise as a result of the disability?
According to section 15 of the Equality Act 2010, an employer mustn’t treat a person less favourably due to something caused by a result of their disability – whether a visible or invisible disability. The Employment Statutory Code of Practice gives some relevant examples in section 5.9: “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.”
Discrimination arising from disability can only be justified by the employer if the unfavourable treatment is a “proportionate means of achieving a legitimate aim.” The Court of Appeal says discrimination arising from a disability claim doesn’t necessarily require the employer to be aware the disability was the underlying cause of the certain thing that caused the unfavourable treatment in the first place.
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