Discrimination arising from a disability is not a ‘but for’ test

In Robinson v Department for Work and Pensions, the Claimant brought a claim for discrimination arising from a disability relating to the way the DWP handled her disability.

The Claimant suffered from blurred vision, a disability which caused migraines when the Claimant used computer software required by the DWP.  The DWP made adjustments for the Claimant but there were technical difficulties and delays in doing so.

The ET upheld the Claimant’s claim but this was overturned by the EAT, with which the Court of Appeal agreed.  In its Judgment the Court of Appeal said that the correct test is whether the Claimant was treated unfavourably “because of” something arising from her disability – requiring the ET to examine the thought-processes (conscious or unconscious) of the alleged discriminators.   It was not enough for the Claimant to demonstrate that “but for” her disability, she would not have been in the unfavourable situation.

This judgment provides clarity on the way in which the ET must approach claims for discrimination arising from a disability, which includes consideration of the reason for the unfavourable treatment.