Section 15 Equality Act claims – what are they?
Section 15 Equality Act claims – what are they?
Most HR practitioners will be aware of discrimination claims relating to direct, indirect, harassment or victimisation.
Discrimination arising from disability is less obvious to spot and can result in an expensive day out at an Employment Tribunal for employers. Marks and Spencer plc were recently ordered to pay a former employee compensation in excess of £50,000, part of which was the result of a section 15 claim. We touch on this case below together with a recent decision in the Employment Appeals Tribunal which illustrates the potential risks of claims to employers.
Section 15(1) of the Equality Act 2010 states that discrimination arising from disability occurs where both:
- A treats B unfavourably because of something arising in consequence of B’s disability; and
- A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
Knowledge of the disability is important. Knowledge of the consequences of a disability is not required.
The employer dismisses an employee for three months sickness absence. The employer is aware that the employee has multiple sclerosis and most of the employee’s absence is disability related. Whilst the decision to dismiss is not because of the employee’s disability itself (so no direct discrimination), nonetheless, the employee has been treated unfavourably because of something arising in consequence of her disability (the need to take a period of disability related sickness absence).
The employer would need to demonstrate that the dismissal was a proportionate means of achieving a legitimate aim. What is the business aim in dismissing, and why it was proportionate to do so in this case, despite the employee’s disability?
Section 15 claims are often pleaded by claimants who are neurodivergent (ADHD, autism, dyslexia, dyspraxia, Tourette’s syndrome, Asperger’s syndrome and OCD). Employees with the above conditions may qualify as disabled and be entitled to protection under the Equality Act 2010.
How did M & S get it wrong?
The employee, Ms Jandu was dyslexic, which meant that she found reading and communicating via lengthy emails difficult. Her GP reported that she also had difficulties with sentence comprehension and spelling skills in the low range. She required adjustments of regular breaks after 15/20 minutes of reading, particularly from a computer screen. She informed her managers that she was dyslexic and requested reasonable adjustments. The adjustments were sometimes used but not consistently enough to resolve her difficulties.
In 2020 she was provisionally placed at risk of redundancy. As part of the process, M & S implemented a redundancy selection criteria. The criteria included consideration of leadership skills, technical skills and behaviours.
Ms Jandu was marked down for her “accuracy and attention to detail” which led to extra review time for her managers. She was also marked down for her behaviour as her standard of work dropped when workloads were high. She was dismissed on the basis of her low score. During her appeal, Ms Jandu claimed that her score was linked to her dyslexia but this was dismissed by the appeal officer.
She brought successful claims of unfair dismissal and disability discrimination. The disability discrimination elements included a section 15 claim and a failure to consider reasonable adjustments.
The tribunal took into account the fact that M&S failed to seek an expert opinion from occupational health about the employee’s dyslexia and the impact it had on her scores. The tribunal found that the claimant had been marked down because of something arising from her disability. They criticised M&S for dismissing Ms Jandu’s argument at appeal that there was a link between her dyslexia and the things for which she had been marked down for. The selection criteria was largely based on a subjective opinion. M&S could not establish that the treatment was a proportionate means of achieving a legitimate aim.
The tribunal also found that M&S had failed to make reasonable adjustments to the process.
Getting it right in relation to a section 15 claim
Turning to an employer who got things right in establishing that any unfavourable treatment was a proportionate means to achieve a legitimate aim.
The case of Morgan v Buckinghamshire County Council  EAT160 shows the benefit of an employer seeking to investigate the impact that a medical condition could have on an employee’s behaviour in a particular set of circumstances. This may also provide some comfort to employers who have difficulty obtaining an employee’s consent to a medical examination. Importantly, it is an Employment Appeal Tribunal decision and provides some useful authority on section 15 claims in the context of misconduct cases.
The Claimant had autism, dyslexia and other conditions. Her employer accepted that she was disabled. She was a supervising social worker in the fostering team. She was dismissed by the Council for overstepping professional boundaries. She had given gifts to a child without permission and had also written an inappropriate case note. The dismissing officer was concerned that the behaviour could reoccur.
The Claimant brought a claim of unfair dismissal and discrimination arising from disability. Part of her argument was that her autism had impacted her judgement on understanding the gift giving policy and the appropriateness of the case note.
The tribunal found that the conduct for which the Claimant was dismissed resulted from her disabilities. In the circumstances, however, and given that the Claimant had declined an occupational health assessment, her dismissal was within the range of reasonable responses and proportionate means to achieve a legitimate aim, namely safeguarding children’s needs. The Claimant was therefore not unfairly dismissed, nor was she unlawfully discriminated against for reasons arising from her disability.
The Claimant appealed and the EAT dismissed her appeal. The EAT upheld the tribunal’s decision, The EAT placed significance on the fact that the Claimant had declined an occupational health assessment which meant that her employer had no advice on whether she was likely to repeat her behaviour, nor could it assess that risk.
As an aside, the Claimant succeeded in a claim for disability related harassment due to comments from an appeal officer that was partly at fault for masking her disability during her employment.
Tips for Employers on managing the risk of section 15 claims
1. Employers should approach these cases with caution. Managers should be trained around awareness of claims and obligations under the Equality Act 2010, particularly section 15 claims.
2. Employers should consider taking medical advice when dealing with disabled employees, whether that be from occupational health or the employee’s own medical practitioner.
3. Reasonable adjustments should be considered, especially, in relation to any process that has been implemented by the employer. In the context of a redundancy exercise, employers should stress test any selection criteria to ensure that it does not negatively impact any disabled employees. In the M&S case, the tribunal warned employers against using subjective scoring criteria in redundancy selection processes. M&S had relied on leadership skills, technical skills and behaviours, but had not implemented clear narratives as to what was and was not covered by each criteria.
4. In cases of misconduct, the risk of repeat behaviour is an important factor. If, even with reasonable adjustments, there is a strong likelihood that serious misbehaviour could be repeated (for example, because the employee does not accept that there is misconduct or understand why), dismissal is likely to be in the band of reasonable responses. As always, dismissal should be a last resort over other options, such as giving a final written warning and moving the employee to a different team and/or working from home should be considered first.
5. If an individual relies on their disability as an explanation for misconduct or under performance, employers should consider the following factors:
- How the medical condition and other medication affects the employee.
- What the likelihood is that the behaviour will be repeated.
- If any reasonable adjustments would assist in reducing the risk.
- If there are any other sanctions which would be appropriate in the case.
The above points are questions that employers may consider asking occupational health to comment on before considering the outcome of any case.
6. This is a tricky area and it is always worth taking legal advice at the outset of the process.