The Court of Appeal’s recent decision in Robinson v DWP has clarified what an employee will need to show to succeed in a claim for discrimination arising from disability. The Court of Appeal decision means that tribunals must look at the motivation behind the employer’s treatment complained of.
Ms Robinson had been working for the Department of Work and Pensions in her role as Debt Administrator since 1992. In 2014, she began to suffer from blurred vision which caused hemiplegic migraines. As a result, she struggled to undertake her work as the computer programme she used worsened her symptoms. DWP tried various solutions to alleviate the substantial disadvantage caused but it was unsuccessful. Ms Robinson raised a grievance due to this and she was then moved to a paper-based role.
Ms Robinson brought a claim for discrimination arising from disability on the grounds that DWP had not dealt with her disability related grievance in a timely manner.
The “but for” test
Ms Robinson argued had she not been disabled (or “but for” her disability), there would not have been a grievance and so there would be no issue with the grievance being dealt with in a timely manner.
The Court of Appeal ruled that it is not enough for Ms Robinson to say that, if she is not disabled, she would not be treated that way. Instead the employer’s motivation must also be assessed. In this case, the DWP’s actions were not motivated by anything arising from her disability. The delay in dealing with Ms Robinson’s grievance was due to DWP attempting to implement adjustments. When DWP could not adapt her existing role appropriately, they moved her to a paper-based role in the same department with the same rate of pay. Due to these actions the Court found DWP’s delay to be reasonable and proportionate.
What does this mean for future claims for discrimination arising from a disability?
Although previous cases had confirmed that it was not enough to apply the “but for” test alone, the correct approach had not been clarified. Following this decision, it will not be enough to simply prove that had the individual not been disabled, the act, or failure to act, would not have happened. The reasoning behind the employer’s conduct must be considered.
If you would like to seek advice on any of the issues mentioned in this article, please contact a member of our Employment Team who will be pleased to assist.
Please note that this information is for guidance only and should not be regarded as a substitute for taking full legal advice on specific facts and circumstances.