Under the Equality Act 2010, claimants can bring a claim of disability discrimination on the basis that they suffered a disadvantage “because of” their disability and/or “in consequence of” their disability. The EAT pointed out in Boesi v Asda Stores Ltd that the different wording matters not least because tribunals have to carry out a different exercise depending on which approach the claimant adopts.
Basic facts
Ms Boesi, a warehouse operative, suffered from a degenerative disc disease which meant she could not lift weights, bend, walk or sit for more than ten minutes. From 2014 to 2019 she was off sick on numerous occasions.
In April 2019, the company’s physiotherapist reported that Ms Boesi’s back pain was unlikely to ever be fully resolved. Following a meeting on 13 June 2019 at which she presented a note from her GP saying she was not fit enough return to work and no adjustments could be made for her, she was dismissed.
Ms Boesi claimed disability discrimination under section 13 of the Equality Act 2010, arguing that Asda should have found her alternative work which involved “lighter duties”.
Relevant law
Section 13 states that it is direct discrimination for an employer to treat a worker less favourably “because of” their disability compared to another worker who is not disabled.
Section 15 states that it is discrimination to treat a worker “unfavourably because of something arising in consequence of” their disability.
Tribunal decision
As the physiotherapist and the GP had stated that Ms Boesi was not fit to return to work in any capacity, the tribunal found that she could not have taken up a job with lighter duties, even if there had been a vacancy.
Concluding that a hypothetical comparator in the same circumstances as Ms Boesi but who was not disabled would have been treated in exactly the same way as her, the tribunal dismissed her claim.
Ms Boesi appealed, arguing that as the tribunal had compared her with someone who had been absent from work for the same length of time as her and who had a similarly poor prognosis, they had compared her with a disabled person which was not permitted under section 13. Given that it had identified the wrong comparator, its conclusion on less favourable treatment was also wrong.
EAT decision
Dismissing the appeal, the EAT found that Ms Boesi had wrongly assumed that decisions relating to the “consequences of” her disability (a section 15 claim) were the same as decisions taken “because of” her disability (a section 13 claim).
As Ms Boesi had put her case as one of direct discrimination under section 13, the tribunal had to determine whether this was “because of” her disability. To carry out that exercise, it had to attribute the relevant circumstances to the relevant hypothetical comparator. It would not have done its job properly had it discounted the issues at the heart of the case on the facts that it had found. That included Ms Boesi’s long-term absence and inability to return to work or to undertake any of the tasks involved in her job, or any alternative work.
In undertaking that task and given that a hypothetical comparator in materially the same circumstances would have been treated in the same way, the tribunal was entitled to find that the reason for her treatment was not “because of” her disability.
Similarly, in relation to the decision to dismiss her, this was because she had been off work for a year and a half, and there was no prospect of her returning in the immediate future, not because of her disability.
Comment
The decision demonstrates the importance of bringing the right claim in disability discrimination cases. In this instance, a section 15 claim may have been more appropriate.