Thread by @JasonBraier

Booth v Delstar: EAT reinforces the need to follow Pnaiser's guidance in a s.15 EqA claim, & emphasises that the comparison in an indirect disability discrimination claim is between those sharing C's disability & those not doing so, rather than disabled v non-disabled.
#ukemplaw

2/ This case concerned an employee on long-term sick leave following a pulmonary embolism, kidney disease & a stroke. The employer subscribed to an income protection policy for those on long-term leave, but HR didn't think it applied to those unlikely to return.

3/ As a result, the HR delayed for a significant period in applying for income protection for B once his sick leave ran out - she only applied when her error on coverage was explained to her. She had also attempted to dismiss B when she believed he'd not be covered.

4/ B brought s.15 claims in respect of the delay on applying for income protection & the dismissal threat. B also brought a s.19 claim re the delay in applying for the income protection. As per the list of issues, B relied on being on long-term absence for the s.15 claim.

5/ Contrastingly, for the s.19 claim B relied on the dual elements of being on long-term sick leave and being unlikely to return to work.

6/ The ET found the s.15 claim made out in re the income protection delay, holding that HR mistakenly thought it only applied to those on long-term sick leave likely to return whereas B was long-term sick and unlikely to return.

7/ The ET found s.15 not made out re the dismissal threat, finding that the decision was not because of C's long-term sick leave but because HR wrongly thought the policy didn't apply to him. The ET didn't refer to C's unlikelihood of returning.

8/ On the s.19 case, the ET found the claim made out, holding there was a PCP of not applying for income protection for those on long-term sick leave & unlikely to return, & that that disadvantaged those who were disabled as they're more likely to be eligible for the benefit.

9/ The EAT noted re the s.15 claims that the ET hadn't referred to Pnaiser (only referring to Sheikholeslami) & hence hadn't looked at the issue of multiple causes in the 'because of' element & multiple chain links re the 'something arising'. This was an error.

10/ The EAT noted also the ET had provided different descriptions of the something arising under the 2 s.15 claims: 1 was just long-term sick leave, the other added unlikely to return. The List of Issues was only on the former basis & should have been how the claim was determined

11/ On the s.19 claim, the EAT took issue with the identification of the comparator group. The ET compared disabled & non-disabled, but reading s.19 with s.6(3) it should've compared those with C's particular disability as against those without it.

12/ As a result, the ET hadn't applied the correct comparison and hence needed to go through the exercise of determining particular disadvantage as applied to the correct comparator pools, an exercise not yet undertaken.

13/ Appeals and cross-appeals on both the s.15 claims and the s.19 claim were thus allowed & all matters were remitted to the same ET to redetermine.

The judgment can be found at the link below:

assets.publishing.service.gov.uk/media/64536847…