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The recent judgment of the EAT in IPC Media Ltd v Millar (UKEAT/0395/12/SM) is the first EAT judgment to deal with the provisions of s 15 of the Equality Act 2010, which introduced a new form of disability discrimination colloquially known as discrimination ‘arising from' a disability. Douglas Leach of Guildhall Chambers, examines what the judgment tells us about how the new cause of action operates.
As is well known, the House of Lords' judgment in London Borough of Lewisham v Malcolm  IRLR 700, gave rise to significant problems for claimants in making out claims of direct disability discrimination or disability-related discrimination under the Disability Discrimination Act 1995. This was because of the restrictive approach the House of Lords took to the correct comparator to be adopted when analysing such claims: the strict ‘like for like' comparator required by the House of Lords, made it virtually impossible for disabled claimants to show that they had been less favourably treated.
The government's response to this problem was to introduce a new cause of action when enacting the Equality Act 2010, in the form of the claim made available by s 15, of discrimination ‘arising from' disability. Via this medium, the requirement for a comparator was simply removed, thereby providing a means for claimants to circumvent the effects of Malcolm.
The current importance of the s 15 claim has further been dramatically increased by a more recent and lengthening line of authority, which imposes the Malcolm approach to the comparative exercise even in the context of the reasonable adjustments claim (which had previously been thought to have escaped its clutches). This is so at least in the context of disability-related absence, and it is difficult to see why the comparative exercise should differ according to the factual context. RBS v Ashton  ICR 632 (EAT)was the first proponent of this approach in a reasonable adjustments claim, quickly followed by Newcastle Hospitals NHS FT v Bagley  EqLR 634 (EAT). More recently, Rider v Leeds City Council  EqLR 98 (EAT), Foster v Cardiff University  EqLR 718 and London Borough of Hillingdon v Bailey  EqLR 729 (EAT) have added to the weight of authority adopting this approach. As was highlighted in an earlier opinion piece, ‘Disability, attendance management and reasonable adjustments‘ (October 2012), the s 15 claim offers a possible route around this problem.
Section 15(1) provides that a person (A) discriminates against a disabled person (B) if:
(a) A treats B unfavourably because of something arising in consequence of B's disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
Section 15(2) provides a further defence in relation to knowledge: ‘Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.'
Thus, all that is required on the face of the statute is that the claimant must have experienced some kind of detrimental treatment. The causation element of the cause of action, on its face, is that the detrimental treatment must be ‘because of', ‘something', ‘arising in consequence' of the claimant's disability. ‘Something' could seemingly cover virtually anything, and ‘arising in consequence' connotes only a loose connection with the disability. So long as the detrimental treatment is ‘because of' that ‘something', the claim will be made out (subject to the defences of objective justification and knowledge of disability). The EAT's judgment in Millar, helps to clarify the meaning of some of the statutory phrases. Key facts
Ms Millar was a journalist who worked in various editorial roles for IPC Media Ltd (‘IPC'). She initially worked in roles requiring her to be in the office on a full time basis, but after developing osteoarthritis in her knees, she moved into a role which enabled her to work from home two days a week.
IPC decided to merge the teams working on two of its magazines, Ms Millar being a member of one of them. A redundancy exercise ensued, and Ms Millar was dismissed for redundancy. In the year running up to the redundancy exercise, Ms Millar had had significant absences due to surgery on her knees, and a further operation was pending. There were two posts that would be available after the redundancy exercise, for which Ms Millar was not considered. She brought a claim in the employment tribunal, alleging (inter alia) that her dismissal amounted to discrimination arising from her disability under s 15.
Tribunal upholds s 15 claim
IPC's evidence was that the reason why Ms Millar had not been considered for the two vacancies, was that the posts had not been ‘signed off' or advertised by the time Ms Millar's employment was terminated.
The tribunal concluded however, that there was no persuasive evidence as to why no steps were taken to make Ms Millar aware of the posts or to enable her to apply for them before her employment terminated. That position, along with the history of past absence, was enough for the tribunal to consider that there was evidence enabling it to conclude that the reason for the failure to enable Ms Millar to apply for the vacancies, was the history of absences. The tribunal went on to find that the respondent had not objectively justified its treatment of Ms Millar, and upheld the claim. IPC appealed to the EAT.
EAT allows appeal
The EAT had little difficulty in allowing the appeal, on the basis that there had in fact been no evidence at all that the relevant manager who was the decision maker in Ms Millar's dismissal, had any knowledge of the absences that were alleged to have materially contributed to the dismissal. On that basis, there could be no possibility of even a prima facie case (applying the burden of proof provisions now to be found at s 136, EqA 2010) that the dismissal had been ‘because of' the disability-related absences.
In the course of reaching this conclusion, the EAT made some useful points as to the operation of s 15. The EAT said in general terms that it could not ‘see any difficulties about its meaning and effect'.
As regards the meaning of ‘because', the EAT applied the same test that applies in the context of a direct discrimination claim under s 13. Namely, for an act or omission to have been ‘because of' a proscribed factor, that factor must have operated on the mind of the putative discriminator (consciously or subconsciously) in a material way, pursuant to the House of Lords' judgment in Nagarajan v London Regional Transport  ICR 877.
This led on to the point about the relevant individual's knowledge in this case: that person could not be consciously or subconsciously influenced by something that they were unaware of. The EAT emphasised in addition, that it was not enough for some individuals at IPC to have been aware of the absences. While Ms Millar's line manager was fully aware of the absences and the reasons for them, the EAT's view (by a majority) was that there was no evidence that the manager who actually made the decision to dismiss had any such knowledge, and no evidence on which any inference to that effect could be drawn.
Accordingly, the appeal was allowed, and the claim under s.15 of discrimination ‘arising from' disability was dismissed.
Shortly after the enactment of the Equality Act 2010 and long before any appellate case-law was available, some commentators had pointed out that the question of knowledge for the purposes of s 15, so far as explicitly set out in the Act, related only to the issue of knowledge of disability.
While that is clearly an accurate reflection of the terms of the statute, it must also be right however that knowledge of the ‘something' that arises in consequence of the claimant's disability, must be present for a tribunal to be entitled to find that the ‘something' was causative of the unfavourable treatment. In this way, a lack of knowledge of the ‘something' becomes an additional knowledge-based defence over and above that already provided for in s 15(2).
Further, by affirming (as many had believed would be the case) that Nagarajan provides the correct test to be applied to the meaning of ‘because', the s 15 claim effectively becomes a form of direct discrimination claim, but where the ‘something' takes the place of the protected characteristic (and where the defence of objective justification applies).
Moreover, it is worth noting that the facts of Millar themselves were perhaps rather unusual. There does not appear to have been any analysis in evidence before the tribunal as to the basis upon which Ms Millar was selected for redundancy. In another similar case where the claimant has had a number of disability-related absences, and where absence is one of the criteria for selection for redundancy (and where it can be shown that the score under that criterion contributed materially to the selection), it is difficult to see how the relevant decision maker could be said not to have had knowledge of the ‘something' that arose in consequence of the claimant's disability.
Finally, it may be that a further appellate decision will address whether or not the knowledge requirement extends to a requirement for knowledge of the relationship between the ‘something' (in Millar, absence) and the claimant's disability, as well as merely the existence of the ‘something' and the disability. However, it is submitted that there is no room in the statutory language for such a requirement.