Direct discrimination is less favourable treatment of a person ‘because of’ a protected characteristic. In a case where the protected characteristic is disability it is generally accepted that there can be no direct discrimination if the alleged discriminator does not know that the person is disabled. In other words, disability cannot be the reason for the treatment if the alleged discriminator is unaware of the disability.
The case of Urso v DWP, however, shows that what matters is not whether the discriminator – in this case, the employee’s manager – is aware of the specific nature of the disability, but whether he or she is aware of the underlying facts which amount to it. Ms Urso had suffered for some years with Post Traumatic Stress Disorder (PTSD) and was absent on a number of occasions with what her doctor described as ‘stress and anxiety’. Her absence reached such a level that she was put through the employer’s absence management procedure and eventually dismissed.
The tribunal found that her dismissal, which had been based largely on her failure to engage with occupational health, was ‘grotesquely unreasonable’ but rejected her disability discrimination claims. While the employer knew of her PTSD, the manager who decided to dismiss her did not. The tribunal ruled that he could not therefore have directly discriminated against her ‘because of’ her disability.
On appeal, the EAT held that although the manager did not know of the specific diagnosis of PTSD, there was ample evidence that he was aware that she suffered from a serious psychological condition which led to her absence and also affected her engagement with the absence management process. The tribunal should have considered whether his unreasonable treatment of her case was influenced by that knowledge. The tribunal had also been wrong to reject her claims of discrimination ‘because of something arising in consequence’ of her disability and of failure to make reasonable adjustments. Furthermore, the tribunal had wrongly found that the dismissal of an employee was not capable, on its own, of amounting to harassment. If the dismissal was unwanted conduct related to disability – and violated the employee’s dignity – then a complaint of harassment would be made out. These matters were all therefore sent back to the tribunal to be reconsidered.
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