On 5 October 2018 the Scottish Employment Appeal Tribunal (the “SEAT”) handed down its decision in Professor Roya Sheikholeslami v The University of Edinburgh . This decision touched on several areas of interest under the Equality Act 2010 (the “EA”) but for our purposes the comments of most interest were those regarding discrimination under section 15 of the EA.
Section 15 of the EA
Section 15 of the EA prohibits treating an individual unfavourably because of something which results from (but is not in fact) an individual’s disability.
Section 15 is a tricky provision to apply and it can be difficult for businesses to predict its application which can be the source of some angst when trying to avoid exposures. Sheikholeslami provides useful guidance and reminders for businesses. This may help to minimise the scope for discrimination claims.
The claimant was Professor Roya Sheikholeslami. She was Professor and Chair of Chemical Process Engineering for the University of Edinburgh within the School of Engineering. Her employment commenced on 1 May 2007. Professor Sheikholeslami raised several complaints about her general treatment by the University. Ultimately, this led her to being signed off sick with workplace stress, anxiety and depression in October 2017. It was agreed that her mental condition satisfied the definition of “disability” within the meaning of the EA.
Employment Appeal Tribunal’s Decision
The SEAT overruled the original Employment Tribunal’s (the “ET”) decision which found that Professor Sheikholeslami had not been discriminated against. Despite her complaints regarding the University’s non-compliance with its own procedures, a visa issue resulting from her refusal to return to the School of Engineering and her ultimate dismissal the ET decided that she was dismissed because she “was unwilling or unable to return to work in her existing post”. Although section 15 has always been understood to provide a broader connection test, the ET felt that “there was insufficient evidence before it to make the necessary link with disability”.
In recent years, many decisions have sought to re-emphasise that the causation test in section 15 is whether the unfavourable treatment was for something that arose “in consequence of”, rather than “because of” a disability. In Sheikholeslami, the SEAT has seized another opportunity to stress the same. The SEAT set out the basic questions to be asked as follows:
- Question 1: did the University treat Professor Sheikholeslami unfavourably because of an (identified) something?
- Question 2: did the (identified) something arise in consequence of Professor Sheikholeslami’s disability?
In the language of this case, the “(identified) something” was Professor Sheikholeslami’s refusal to return to her previous role and the disability was her work-place stress, anxiety and depression.
So, in the SEAT’s view, the key question became whether the refusal to return to her role was something arising in consequence of her work-place stress, anxiety and depression. This was different to the approach taken by the ET which had said the question before them was whether she dismissed because of her disability. In doing so, the ET incorrectly used the language of direct discrimination in a section 15 claim which was a fundamental error. The SEAT stressed in its decision that for section 15 purposes, the causal connection “may involve several links” and the ET did not seem to contemplate this possibility. The ET should have considered why Professor Sheikholeslami was not prepared to return to her existing post. Professor Sheikholeslami became unwell due to treatment she perceived to derive from the workplace, this became a disability and her refusal to return to the workplace was because of the treatment she perceived. In the words of the SEAT, “in a case like the present one, where the disability, its cause, and its effects are all so interlinked… the broad causation question in section 15 was capable of being satisfied”.
Sheikholeslami clarifies that a looser connection involving more than one link in a chain of causation may be permitted for section 15 claims. For potential claimants, this means that they may have causes of action that they had not initially considered. For businesses, Sheikholesalami is a reminder that they must ensure their staff give careful thought to managing workplace stress. A broad causal rule like this can make it hard to predict what will be considered discriminatory towards disabled staff. Nonetheless, it is a difficult task that must be grappled with and seeking advice will often be prudent.
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This article should not be taken as definitive legal advice on any of the subject matter covered. If you do require legal advice, please contact Rosenblatt as above.