Employment Appeal Tribunal finds ET had wrongly applied a “but for” test for causation and findings of discrimination arising from disability could not stand.

Kerr J has delivered judgment in the case of DWP v Robinson EAT 0021/19, an important decision confirming that it is insufficient for a Claimant to argue, on a claim under section 15 of the Equality Act 2010, that “but for” their disability they would not have been put in a situation that led to unfavourable treatment. Rather, the focus needs to be on the reasons for the treatment itself. In so finding, Kerr J approved the obiter comments of Underhill LJ in Dunn v Secretary of State for Justice [2019] IRLR 298.

Mrs Robinson had been employed by the DWP as an administrator. Her disability caused her to suffer migraines when using particular software. The Tribunal found that the Respondent had made all possible reasonable adjustments and it found that the particular magnification software requested by the Claimant would not have been effective in removing the disadvantage she suffered. However, it went on to find that the Claimant had been treated unfavourably in the way the Respondent delayed in dealing with her grievance about these adjustments and also criticised the delays in finding a technical solution to the Claimant’s problems. The Respondent argued on appeal that the Tribunal had impermissibly applied a “but for” test for causation in upholding the section 15 claims and had also arrived at findings that were inconsistent with the finding that the Respondent had made all reasonable adjustments under section 20.

The EAT agreed. Kerr J also found that the findings of fact made by the Tribunal permitted only one possible outcome – that the section 15 claims had to be dismissed. The EAT therefore substituted a finding that the Claimant had not been discriminated against.

A cross-appeal by the Claimant which challenged the factual basis of the reasonable adjustments claim also failed, Kerr J finding that the Tribunal had been fully entitled to dismiss this claim.

Tom Kirk, who also appeared in the Court of Appeal in Dunn v Secretary of State for Justice, represented the successful Appellant. He was instructed by the Government Legal Department. Click here for a full copy of the EAT’s judgment.

1st August 2019