The Equality Act 2010 allows for a claim of direct discrimination because of someone else’s disability, known as discrimination by association. In Bennett v Mitac Europe Ltd, the Employment Appeal Tribunal (EAT) held that the tribunal had failed to properly analyse some of the company’s stereotypical assumptions about a disabled employee which could have constituted direct discrimination.
Basic facts
Mr Bennett was the UK sales manager for Mitac alongside the sales and marketing director, Stuart Balaam. Both started work for the company in March 2018. In April 2018, Mr Balaam had a heart attack and during various tests, a growth was found on one of his kidneys. On 7 August, he was told he had cancer and would need an operation.
A couple of days after he had his heart attack, one of the senior managers, Mr Chang, expressed concerns about “personnel issues” in the UK. Then, in mid-August, as a result of concerns about the performance of the business in the UK, Mr Chang was involved in discussions about the possibility of dismissing Mr Balaam and some or all of the UK sales team, but in the end they were retained.
Concerns about the performance of the two men continued and it was decided towards the end of August that their probation periods should be extended. There was then a “volte face” on 3 September, following an email from Mr Chang, at which point both men were dismissed for “poor performance”.
Mr Bennett lodged a claim of direct disability discrimination which he argued was “because of” Mr Balaam’s disability, often referred to as “discrimination by association”.
Tribunal decision
The tribunal first had to consider whether the two dismissals were “because of” Mr Balaam’s disability or because of a genuine belief in the poor performance of both men. It concluded that as some of the facts indicated that the dismissals might have something to do with his manager’s disability, the burden of proof shifted to the company to prove it had not discriminated against Mr Bennett.
The tribunal then concluded that although the company had failed to make allowances for the possible effects of the cancer on Mr Balaam’s past performance, overall, the evidence showed that he was dismissed for poor performance. In relation to his future performance, the tribunal acknowledged that Mr Chang had taken this into account when he referred to “personnel issues”, but this did not constitute direct discrimination.
Given the significant concerns that the company had expressed about Mr Bennett’s competence, the tribunal concluded that he was also dismissed because of his poor performance and not because of Mr Balaam’s disability.
EAT decision
The EAT was critical of the tribunal for failing to analyse what Mr Chang had meant when he referred to “personnel issues” in the UK after being informed of Mr Balaam’s ill health. Indeed, his comment that the company could not continue to change personnel without affecting sales indicated that the “personnel issue” was a reference to the impact of Mr Balaam’s ill health on future sales.
It also criticised the tribunal for not asking why Mr Chang had not been called to give evidence, not least because the absence of overt evidence of discrimination generally means that the decision taker’s evidence is likely to be important. Where no reason or an unconvincing reason is given for their absence, it is particularly important to carefully analyse the evidence to determine whether, on the balance of probabilities, it is sufficiently cogent to prove that the protected characteristic was not a material factor in the decision taken. The EAT also reminded tribunals of the possibility that a party might choose not to call a witness because their evidence would be damaging, particularly where the party was reluctant to explain their non-appearance.
The EAT further held that the tribunal failed to appreciate that even when there were genuine concerns about the performance of Mr Balaam and Mr Bennett, this did not mean that Mr Balaam’s disability could not have been a material factor in the decision to dismiss the claimant.
Although the tribunal held that this was unfavourable treatment because of something arising from disability, the EAT held that, on the contrary this type of stereotypical assumption could amount to direct discrimination. Having made this error, the tribunal then concluded that Mr Balaam would not have a good claim of direct disability discrimination, whereas on its own analysis he probably did.
The EAT therefore determined that the employer had not discharged the burden of proof to establish that Mr Bennett was not subject to direct discrimination because of Mr Balaam’s disability.
Finally, the EAT held that it is not necessary for a person to have a medical diagnosis for a condition such as cancer to be deemed disabled. The question is whether, as a matter of fact, the person had cancer. However, it acknowledged that without a diagnosis, it might be difficult for the individual to prove they have cancer.
It remitted the case to a newly constituted tribunal for reconsideration of the issues.
Comment
It is unusual to come across a decision on the issue of associative discrimination and given that those who discriminate rarely admit to it, building a case is challenging. This is therefore a useful case on the scope of protection available under the Equality Act 2010. It highlights the importance of carefully scrutinising the reasons given by the decision maker and the scope for trade union reps to ask decision makers to give evidence at the appeal stage of any internal procedure so that the tribunal’s attention can be drawn to their not having done so if no reasonable explanation is offered.