Direct disability discrimination cf section 15 discrimination
In Boesi v Asda Stores Ltd [2023] EAT 49, [2023] IRLR 625, Eady J explained:
- The fallacy of the claimant’s argument on appeal is that it assumes that decisions taken relating to the consequences of her disability are to be treated as decisions taken because of her disability. Allowing that many persons in the claimant’s circumstances (those are the circumstances attributed by the ET to the hypothetical comparator) might well meet the definition of a disabled person under the EqA, that need not necessarily be so.
- More particularly, the ET was bound to impute the relevant circumstances to the hypothetical comparator; it would have failed in its task if it had discounted that which was at the heart of the case on the facts it had found (that is, the claimant’s long-term absence and inability to return to work or to undertake any of the tasks involved in her job, or any alternatives). This was a case where the ET had to determine the real reason for the treatment complained of, in order to establish the relevant circumstances of any comparison. In undertaking that task, the ET was entitled to find that the reason for the treatment complained of was not the claimant’s disability as such, even though it might have related to something arising in consequence of that disability. Having made that finding, to the extent that it remained in any way relevant, the ET permissibly found that the hypothetical comparator – in materially the same circumstances – would have been treated in the same way.
- The claimant having put her case as one of direct discrimination under s 13 EqA, the ET carried out the task required under the statute and as explained in the case-law. It might be thought that this was a case that provided a good illustration of why the alternative form of discrimination, provided by s 15 EqA, was needed for the protected characteristic of disability; the ET was not, however, tasked with determining the claim under that provision (which would, of course, have required it to also consider questions of justification). It did not err in how it approached the case before it and, for the reasons provided, I duly dismiss the claimant’s appeal.
In mental process cases where it is necessary to consider the reason or reasons why something happened, any “but for” analysis is inapt.
