Background
M Shah was employed by the Home Office as an Executive Officer. He was disabled by depression. In May 2017, he applied for a post as an Immigration Liaison Officer based overseas and requested consideration under the Guaranteed Interview Scheme (GIS)—an employer policy guaranteeing interviews for disabled applicants who meet minimum criteria. On his application form, Shah mistakenly entered his own email address instead of his line manager’s email for validation purposes. When the recruiting manager reviewed the application in August 2017, she noticed he had ticked the GIS box and questioned whether he was genuinely disabled. She consulted with Shah’s line manager, who expressed suspicion that Shah was falsely claiming disability to obtain a guaranteed interview. This concern was escalated, and a disciplinary investigation was initiated on 22 August 2017 alleging misconduct related to his application. After Shah provided representations, no further action was taken on 13 September 2017. Shah filed a grievance on 5 September 2017 claiming discrimination and victimisation based on disability. He was eventually dismissed in November 2018 following the separate withdrawal of his security clearance. The Employment Tribunal dismissed his disability discrimination (section 15) and victimisation (section 27) claims, upholding only the unfair dismissal claim.
The Court’s Holding
The Employment Appeal Tribunal allowed Shah’s appeal on two key grounds. First, regarding section 15 disability discrimination, the EAT found the ET erred by focusing on the employer’s motivation (suspicion of dishonesty) rather than the objective causal link between Shah’s disability and the unfavourable treatment. The EAT established that the ET itself had found at paragraph 102 that Shah ticked the GIS box because he was disabled and that this was something arising from his disability. The ET contradicted this finding by later concluding the real reason for investigation was the employer’s belief in dishonesty. The EAT held that disability need not be the sole or primary cause of unfavourable treatment; it is sufficient that disability has a significant (more than trivial) influence. An employer’s genuine but erroneous belief does not negate disability discrimination if disability was still an effective cause of the treatment. The EAT substituted a finding that the investigation was unfavourable treatment for something arising from Shah’s disability and remitted the question of justification under section 15(2) to the Employment Tribunal. Second, regarding section 27 victimisation, the EAT found the ET erred in concluding that Shah’s GIS application was not a protected act. The EAT held that Shah’s application under GIS was arguably in connection with sections 158 and 159 of the Equality Act 2010 (positive action provisions), which the ET failed to consider. The EAT remitted the issue whether Shah had done a protected act and the causation question back to the same ET.
Key Takeaways
- Under section 15 Equality Act 2010, disability discrimination can be established where disability has a significant influence on unfavourable treatment, even if not the main or sole cause.
- An employer’s motivation or genuine belief that an employee has acted dishonestly does not preclude liability under section 15 if disability remains an effective cause of the treatment.
- The causal connection analysis under section 15 requires separate examination: first, whether the decision-maker treated the claimant unfavourably because of an identified “something” (subjective), and second, whether that “something” objectively arose from disability (objective).
- The ET’s focus on the employer’s subjective mindset was erroneous; causation involves both elements, and disability can satisfy the second element even where the employer’s stated motivation differs.
- Asserting eligibility for an employer’s positive action scheme (such as GIS) may constitute a protected act under section 27(2)(c) when it involves connection with the Equality Act 2010’s positive action provisions.
Why It Matters
This decision significantly clarifies and strengthens protection against disability discrimination under the Equality Act 2010. It establishes that employers cannot avoid discrimination liability by characterising their decision-making in neutral terms (such as responding to suspected dishonesty) when disability was objectively an effective cause of the unfavourable treatment. The judgment distinguishes this case from Kelso v Department for Work and Pensions and aligns it with Hall v Chief Constable of West Yorkshire Police, clarifying that genuine but mistaken employer beliefs do not insulate discriminatory conduct. The case also extends section 27 protections by recognising that an employee’s assertion of eligibility for positive action schemes may constitute protected acts, potentially shielding disabled employees from retaliation when they rely on such schemes.
The ruling has broader implications for disability discrimination claims across UK employment law. It reinforces that causation analysis must remain objective and not collapse into subjective assessments of employer motivation. Employers who investigate or discipline disabled employees must now consider whether disability has any significant influence on their actions, regardless of their stated reasons. The onus then shifts to the employer to justify the treatment as a proportionate means of achieving a legitimate aim under section 15(2)—a potentially difficult burden where disability has been identified as an effective cause.