Looser causation test for discrimination arising from disability

In Sheikholeslami v University of Edinburgh, the Scottish EAT confirmed that the question of whether ‘something arose in consequence of disability’ may involve more than one link in a chain of consequences. 

In this case S was employed as a professor in 2007, in 2010 she was diagnosed with work related stress and depression and was absent from work.  She requested to be transferred to a different department due to what she perceived to be hostility from colleagues in her department, but the university insisted she return to her department. 

The EAT said that the question was not whether her absence was ‘because of her disability or because of another reason’ for example being treated badly by colleagues. Both reasons might be relevant if her disability caused anxiety and stress and an inability to return to work where she perceived there to be mistreatment and hostility.  The question is whether the refusal to return arose ‘in consequence’ of her disability which is a looser test. 

Comment: Employers need to be mindful of this looser causation test in claims of discrimination arising from disability when dealing with staff who potentially have a disability.  It is vital that there is good justification for any treatment or action which may give rise to a disadvantage for those with disabilities. 

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Amy Douthwaite