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Wider still, and wider?

Employees iStock 000005305116XSmall 146x219Graham Richardson considers a recent case involving a London borough and the wide range of circumstances in which employees may bring claims of discrimination arising from disability.

Employers are often familiar with the potential for claims of direct or indirect disability discrimination, but overlook the power and scope of a claim of discrimination arising from disability. Claimants in Employment Tribunals sometimes overlook it too. However the recent case of Risby v London Borough of Waltham Forest [2016] UKEAT 0318_15_1803 shows that it can be a very powerful tool for claimants. The potential for such claims is something which employers need to be alive to.

Discrimination arising from disability

Under Section 15(1) of the Equality Act 2010, discrimination arising from disability occurs where A treats B unfavourably because of something arising in consequence of B’s disability.

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There are a number of important points to note about claims of this type:

  • There is no need for B to be treated less favourably than someone else – no comparator is required. The question is whether B has been treated “unfavourably”.
  • The unfavourable treatment does not need to be directly because of B’s disability. Instead the question is whether it is because of something arising in consequence of the disability. The significance of this distinction is illustrated in the Risby case described below.
  • There is a defence of objective justification potentially available to the employer. For this to apply the unfavourable treatment complained of must be a proportionate means of achieving a legitimate aim.

The Risby case

The potentially broad scope of a claim of discrimination arising from disability is well illustrated in the Risby case. Mr Risby was employed by Waltham Forest Council as a Deputy Risk and Insurance Manager. He was paraplegic due to a road traffic accident. He also had a short temper, which was found not to be related to his disability.

The council decided to organise some workshops at a private venue. The venue had wheelchair access and was therefore accessible to Mr Risby. However, the council’s Chief Executive subsequently decided in the interests of saving costs that external venues should not be hired. The venue for the workshop was therefore changed to the basement of the council’s assembly hall. This did not have wheelchair access. The council’s divisional director sent an e-mail to various colleagues including Mr Risby inviting them to attend the workshop in the basement of the assembly hall. Mr Risby identified that the basement did not have wheelchair access and therefore he would be unable to attend the workshop at that venue.

Mr Risby spoke to Mr Turnbull’s PA, Lisa Scott, about this a number of times and on the third occasion became very angry, shouting at Ms Scott protesting at the decision. Ms Scott asked a manager for assistance, and Mr Risley said in a loud voice “The council would not get away with this if they said that no f*****g n*****s were allowed to attend”. Ms Scott was, unknown to Mr Risby, of mixed race herself and she was upset by his comments, believing that the remark was directed at her. When the event organiser telephoned Mr Risby he remained angry and told her that he was being treated “like a n*****r in the woodpile”.

Mr Risby was summarily dismissed on grounds of using offensive and racist language twice, behaving unacceptably towards managers and colleagues, and behaving in a harassing manner towards Ms Scott.

Mr Risby brought a claim of discrimination arising from disability against the council. Although this claim was dismissed by the Employment Tribunal, Mr Risby appealed against that decision and the Employment Tribunal’s judgment was subsequently set aside by the Employment Appeal Tribunal and the case remitted to the Employment Tribunal.

The EAT found there to be a sufficiently close connection between Mr Risby’s disability and his dismissal for a claim of discrimination arising from disability to be brought and therefore Mr Risby’s claim could proceed. The EAT’s thinking in this regard was that if Mr Risby had not been disabled by paraplegia, he would not have been angered by the council’s decision to hold the workshop in a venue that he could not access. Mr Risby’s misconduct was the product of his indignation at that decision. The EAT considered that there were two effective causes of Mr Risby’s misconduct which led to his dismissal:

  • His short temper (which did not arise out of his disability); and
  • His indignation that the council had decided to hold the workshop at a venue inaccessible to him as a wheelchair user (which arose out of his disability).

It was sufficient that one of the effective causes of Mr Risby’s conduct which led to his dismissal was a cause that arose out of his disability – this did not need to be the only cause of his conduct. As such the claim of discrimination arising from disability could proceed.

Conclusions

Some employers are likely to be surprised by the EAT’s decision in the Risby case. This was not a case in which Mr Risby’s remarks were directly caused by his disability, as might arguably have been the case if his short temper had been the direct result of pain caused by his medical condition. The link between his disability and his comments was weaker than that, but it was still in the EAT’s view sufficient for him to bring a claim of discrimination arising from disability.

A similar approach was taken last year by the EAT in the case of Hall v Chief Constable of West Yorkshire Police, albeit on less striking facts. In that case, the EAT found that it was sufficient that the consequences of disability were “a significant influence on the unfavourable treatment or a cause which is not the main or sole cause, but is nonetheless an effective cause of the unfavourable treatment”. In its decision in Risby, the EAT refers back to the Hall decision .

We understand that an application has been lodged for permission to appeal the Risby decision to the Court of Appeal. The outcome of any appeal, if it is  allowed to proceed, is is awaited with interest – a Court of Appeal decision on the issues may provide some useful clarity in this area.

If a remitted Employment Tribunal hearing does go ahead, the question arises whether the council might in the circumstances be able successfully to run a defence of objective justification to Mr Risby’s claim. To establish a defence of objective justification, the council would need to show that its decision to dismiss Mr Risby was a proportionate means of achieving a legitimate aim. The EAT’s comments suggest that Mr Risby’s dismissal may be seen as a means of achieving a legitimate aim – namely upholding and promoting the council’s equal opportunities policy. However, there may be a question mark as to whether Mr Risby’s dismissal was a proportionate means of achieving that aim in the circumstances, or whether, for example, a final written warning would have been a less discriminatory means of achieving the same aim.

In any event, the EAT’s decision serves as a reminder to employers that a relatively loose connection between an employee’s disability and unfavourable treatment of some kind can result in a claim of discrimination arising from disability. This could result in claims in a wide range of circumstances – not only in disciplinary situations as in Risby but also in the context of, for example, managing employees with poor performance or attendance records or applying redundancy selection criteria. This area may prove a fertile ground of claims for employees, at least for as long as the law remains as it stands.

Graham Richardson is a Legal Director at Bond Dickinson LLP. He can be contacted on 0191 2799456 or This email address is being protected from spambots. You need JavaScript enabled to view it..

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