Madani Schools Federation v Uddin – EAT again clarifies the correct test for a discrimination arising from disability claim

In the case of Madani Schools Federation v Uddin UKEAT/0194/16/BA the Employment Appeal Tribunal (“EAT”) again clarified the correct application of the law relating to discrimination arising from disability, also holding that the Employment Tribunal had incorrectly applied the law in this case.

Mr Uddin worked as a PE teacher at Madani Schools Federation from 29 August 2006 until his dismissal on 5 April 2014. Mr Uddin was not a fully-qualified teacher but intended to gain qualification through the ‘Assessment Only Route’.

In November 2010 Mr Uddin went on a period of sick leave because he was suffering from a chronic adjustment disorder with mixed anxiety and depressed mood. This condition was a disability and the School was aware that Mr Uddin was disabled. In January and March 2011 Mr Uddin submitted two grievances regarding the conduct of two of his colleagues, Mr Ryaz and Mr Adam. These grievances were investigated and rejected in January 2012; Mr Uddin appealed but the appeal was never dealt with by the School.

Mr Uddin then undertook a further period of sick leave from November 2011 to February 2012. On 7 February 2012 he submitted an appeal regarding the outcome of his grievance and on 8 February 2012 he started a phased return to work. He was then off work sick from 18 February 2012 to mid-April 2012 due to a road accident.

On his return to work after his latest period of sick leave Mr Uddin was placed in the history department and was told that his line manager would be Mr Adam; Mr Uddin strongly objected to this as his grievances in 2011 had been submitted partly due to complaints about Mr Adam. There were ongoing discussions about alternative line managers for Mr Uddin but this was not resolved.

A new head teacher started at the School in the summer of 2012 and Mr Uddin was not provided with a timetable for the new academic year. Mr Uddin did in fact receive a letter from the Governors of the School dated 7 September 2012. This letter recited the factual history of Mr Uddin’s employment and invited him to a disciplinary hearing on 18 September 2012 in rather strong terms as the School had concerns about a number of issues, including “[his] constant requests and unreasonable demands in relation to [his phased return to work timetable”, “inability to reach agreement on appropriate line manager”, and “[his] inability or unwillingness to accept that qualification via the Assessment Only Route is no longer a viable option for [him]”. Mr Uddin was unhappy with the letter and sent an email on 17 September 2012 stating that he believed that he was being victimised and intimidated. The disciplinary proceedings were not pursued.

Mr Uddin then sought a meeting with the head teacher. This meeting took place on 4 or 5 October 2012. In this meeting the head teacher stated to Mr Uddin that he would undertake a phased return to work, with phase 1 of the return being him working as an assistant (dealing in literacy and numeracy) to be followed by a review and phase 2 (dealing with PE). Mr Uddin was not happy with this and stated that he wished to return to his role as a PE teacher.

Mr Uddin complained on 27 November 2012 that he was simply sitting in the staff room and not being deployed into teaching PE. He complained again the next day. However, the head teacher again reiterated that he would be expected to return to work on a phased basis, with the first phase being him working as a literacy and numeracy assistant.

On 4 December 2012 he wrote to the head teacher to state that he would not accept returning to work to assist with maths and English when his contract was a a PE teacher. He also complained that his grievance appeal had not been addressed. On 6 December 2012 he wrote to the head teacher in a similar manner, complaining that he believed that he was being treated badly due to his disability and stress. He requested that the conflicts in the PE department (between him and Mr Adam and Mr Ryaz) be dealt with and requested that the School dealt with his concerns. On 17 December 2012 he wrote to the head teacher to state that he would only work in PE and not at the lower level of teaching assistant in maths and English. On 20 December 2012 there was a final meeting in which the head teacher accused Mr Uddin of failing to follow reasonable instructions and Mr Uddin complained that the head teacher had failed to answer his emails.

Mr Uddin was then suspended from work on 22 April 2013 for failing to carry out the instructions of the head teacher regarding a phased return to work. He remained on suspension until he was dismissed on 5 April 2014.

Mr Uddin brought claims to the Employment Tribunal for unfair dismissal and discrimination arising from disability. Mr Uddin succeeded with both claims, with the EMployment Tribunal finding that the reason for Mr Uddin’s dismissal was his failure to comply with the School’s requirement for him to undertake a phased return to work in the maths and English department (rather than the PE department), that Mr Uddin’s contract only required him to teach PE, and that no credible explanation had been provided as to why Mr Uddin could not return to work in the PE department. With regards to the discrimination arising from disability claim, the Employment Tribunal found that the following matters constituted discrimination:

That he was not provided with a PE timetable at the beginning of the 2012-13 school year and was instead summoned to a disciplinary hearing;
That he was required to undertake maths and English duties rather than PE teaching duties;
That he was suspended from work from 22 April 2013;
That the suspension was for almost a year; and
That he was dismissed on 5 April 2014

The School appealed the finding that these incidents constituted discrimination arising from disability.

The EAT upheld the School’s appeal, holding that the Employment Tribunal had incorrectly applied the law relating to discrimination arising from disability (and particularly that of causation). The EAT held that the correct approach to section 15 claims had been laid out in Pnaiser v NHS England [2016] IRLR 170 and required an examination of the following:

Having identified the unfavourable treatment by A, the ET must determine what caused it, i.e. what the “something” was. The focus is on the reason in the mind of A; it involves an examination of the conscious or unconscious thought processes of A. It does not have to be the sole or main cause of the unfavourable treatment but it must have a significant influence on it.
The ET must then consider whether it was something “arising in consequence of B’s disability”. That expression could describe “a range of causal links” and “may include more than one link” but the more links in the chain between the “something” and the disability the harder it is likely to be to establish the requisite connection as a matter of fact. The question is one of objective fact to be robustly assessed by the ET in each case.
It does not matter in precisely what order the two questions are addressed but, it is clear, each of the two questions must be addressed.

The EAT held that the Tribunal had failed to examine the two-stage causation test in discrimination arising from disability claims and remitted the matter back to a fresh Employment Tribunal for consideration of these points.

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case demonstrates that, to an extent, Tribunals are still struggling with the correct application of the law relating to discrimination arising from disability cases – there have been at least three significant EAT judgments in 2015 and 2016 concerning the proper test for such a claim, not least Paisner. What this case also demonstrates is that in situations such as this case (where there are intra-department conflicts of personalties) the employer should not shy away from dealing with such issues head-on – leaving them to stagnate may only cause further issues.”