Archive for July, 2012

Unfavourable not less favourable treatment

S15 of the Equality Act 2010, which applies only to disabled persons, states:

(1) A person (A) discriminates against a disabled person (B) if –

(a) A treats B unfavourable 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.

(2) 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.”

There must be a connection between what led to the unfavourable treatment and the disability but there is no comparison test (see our news letter July 2010).

Each case will of course turn on its own very particular facts but how are the courts approaching this section?  Two cases came before the Employment Tribunal in 2011.

In Williams v Ystrad Mynach College Mr Williams, a permanent member of the academic staff, suffered from hydrocephalus and became incapable of full time employment.  The College terminated his permanent employment feeling Mr Williams no longer capable of doing his job.  It re-employed him on a part time, short term contract.  Mr Williams claimed unfair dismissal and discrimination under s15.  The Tribunal said it was “concerned with unfavourable treatment, not less favourable treatment” and found for Mr Williams.

In McGraw v London Ambulance Service NHS Trust, Mr McGraw was off work due to depression.  He also admitted abusing Entonox (laughing gas) carried in ambulances for patient use.  He visited an ambulance station with what was held to be an intention to steal the drug and was summarily dismissed for gross misconduct.  Mr McGraw claimed unfair dismissal and discrimination under s15.  The Tribunal dismissed the claims finding no link between Mr McGraw’s disability (depression) and his attempt to steal Entonox.

If you wish to hear more, do contact Hatherleigh Training.